ACLU of Maine sues state legal services system for impoverished defendants

The American Civil Liberties Union of Maine has filed a lawsuit alleging the state is failing to meet its constitutional obligations to ensure poor defendants have access to effective attorneys.

Maine’s Commission on Indigent Legal Services oversees that system, and its executive director and eight commissioners are named as defendants in the lawsuit filed Tuesday. The plaintiffs are five people incarcerated in county jails. They are seeking class action status.

The United States Supreme Court has ruled that anyone charged with a crime and facing imprisonment has the right to an attorney and the government is obligated to pay if that person cannot.

Maine is the only state that provides these legal services only with private attorneys who are reimbursed by the state, instead of public defenders who are government employees.

“While there are many competent and committed defense attorneys in Maine, MCILS has failed in its constitutional and statutory duty to oversee, administer and fund a system that provides effective representation to indigent defendants throughout throughout the criminal process,” the complaint reads.

Filed in Kennebec County Superior Court, the suit takes particular aim at the commission’s “counsel of the day” program, which provides attorneys for initial appearances at which defendants often enter their first pleas. These hearings are particularly important for people in prison, as the lawyer for the day can argue for their release and negotiate bail. The complaint says the program is not necessarily unconstitutional on its face, but rather underfunded to the point of being insufficient.

“As few as two lawyers can be on hand to meet with more than 80 defendants each day,” the complaint states. “This scheme violates the Sixth Amendment because it falls far short of providing enough attorneys to even meet with – let alone provide competent representation – defendants needing counsel regarding the implications of potential pleas or pleas on the Bail and Release Conditions.”

The complaint also says that the five incarcerated had difficulty reaching their appointed lawyers to discuss their cases and did not trust their representation. For example, a complainant has been in jail for nine months for allegations related to possession of firearms and bail violations. The complaint says his appointed attorney is not returning his appeals and has not filed any motions on his behalf, and the man does not even know when his next court date will be. His family is now trying to raise enough money for him to hire a private lawyer.

The lawsuit does not focus on the actions of individual attorneys or name them as defendants. Instead, the plaintiffs say MCILS does not have the systems in place to identify when attorneys are not providing effective service to their clients. The complaint says the state failed to set or enforce standards, evaluate the performance of registered attorneys, or provide adequate compensation.

“Maine has failed in its duty to train, supervise and ensure that the attorneys it assigns to defend the liberty of the poor are qualified for this essential task,” said Zachary Heiden, chief attorney at the ACLU of Maine. “This failure has created two systems of justice: one for the rich and one for the poor. But the Constitution requires equal justice.

Justin Andrus, the commission’s executive director, said Tuesday he could not yet respond to the lawsuit’s allegations. But he said he has been advocating major changes in the state’s model for providing defense attorneys to indigent clients since taking office a year ago. The Maine legislature has funded some initiatives, but not all.

“I just see the lawsuit as a way to achieve maybe the same end that we were looking for,” Andrus said.

The Legislative Judiciary Committee has been working this session to craft bills that could address the committee’s issues. Andrus appeared before the committee again on Tuesday afternoon, just hours after the complaint was filed. Members spent most of their time talking about the proposals on the table rather than the litigation, but it still figured prominently in their conversation.

“Now is the time,” said Rep. Jeff Evangelos, a Friendship Independent. “Baby steps are not going to solve this problem. The trial proves it. The agency got the lawsuit, but we’re the problem. We, that is to say myself included, our inability to pass legislation that will remedy these shortcomingses and the ability of our general managers to support us. We have 10 or 15 days for that to change.

“Put big things forward, Justin,” he added.

A spokesperson for Governor Janet Mills reported to the Maine Attorney General’s office and did not respond to a question about what steps the governor would take to address issues identified by the ACLU of Maine and others. entities.

Maine formed the Commission on Indigent Legal Services in 2009. A decade later, a task force found that the commission was not performing systemic monitoring and evaluation of attorneys, and the state hired the Center not supporter of the Sixth Amendment to perform an independent assessment.

In 2019, the center released a comprehensive report on Maine’s system of providing legal defense to the poor. The many issues identified included a lack of supervision for lawyers and gaps in client representation.

In 2020, the state Office of Program Evaluation and Government Accountability released the first report of its own investigation, which found that the commission lacked an organizational structure and established policies for billing attorneys.

The commission has made changes in response to these reports, and Andrus has repeatedly spoken of establishing a hybrid system of both public defenders and appointed private attorneys. The Legislative Assembly added jobs to the understaffed office last year and increased the hourly rate for appointed lawyers from $60 to $80. But those actions have fallen short of expert recommendations, and lawmakers have yet to fund a proposal to open the state’s first public defender’s office in Kennebec County.

Attorneys who represent indigent clients in federal court earn $158 an hour, nearly double the MCILS rate.

The Judiciary Committee is working with Andrus to formalize the proposals that could be approved during this legislative session. One such idea is that of roving public defenders who could travel to rural counties to make appointments when local attorneys are unavailable. They discussed increasing the hourly rate for defense attorneys and finding other ways to give them the same resources currently available to prosecutors, from subscriptions to legal research tools to health insurance. Their hourly rate should cover all of their costs, including benefits and support staff.

Dozens of lawyers have stopped doing cases in recent years due to low morale, high workload, pandemic stress and other factors. Currently, approximately 280 attorneys are available to schedule appointments for all types of cases statewide. The commission appoints attorneys not only for adult defendants, but also for juvenile defendants, parents in child protection cases, and indigent individuals facing involuntary placement in mental hospitals.

Andrus said he fears the ACLU lawsuit will only exacerbate the trend of lawyers delisting. He pointed out that Maine’s defense attorneys are doing a great job.

“This is not an indictment of any particular attorney,” he said. “It’s an indictment of the system.”

The ACLU of Maine has for years threatened to take legal action, and Heiden said the organization decided to do so now because of slow progress on reform.

“We decided that nothing but a lawsuit would bring about the needed change,” Heiden said.

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