Indigent defense needs help right now

Over the past four years, Maine's system for representing indigent defendants in criminal cases has been in crisis – but since the pandemic and its aftermath, it's really become two crises.

Unfortunately, the agency in charge – the Maine Commission on Indigent Legal Services (MCILS) – is only working on the system's long-term problems, almost completely ignoring the one staring it in the face.

Hundreds of defendants are now languishing in jail, many without attorneys – and without much hope of getting one anytime soon.

A bit of background is necessary: Maine, alone among the 50 states, doesn't have a public defender system to backstop an important constitutional guarantee, that all those accused of crimes have a right to an attorney. The number of such defendants soared as the “war on drugs” took off and poverty increased in the 1980s and '90s.

Case numbers overwhelmed the informal system of assignments by judges and court clerks that had worked reasonably well here for decades; Maine offered attorneys in all criminal cases even before U.S. Supreme Court decisions made this mandatory.

The Legislature acted to establish MCLIS in 2009, appointing an executive director and creating attorney qualifications and a billing system. Unfortunately, as a series of recent Maine Monitor pieces revealed, oversight was lax and billing slipshod; the director resigned and the board was replaced.

The new board began enforcing the qualification standards, which had the effect of reducing the number of available attorneys. Then the court system shut down due to COVID, and cases piled up.

Though courts have fully reopened, a fearsome backlog remains, with defendants who can't make bail waiting many months for relatively minor cases to be processed. Without attorneys, they'll wait indefinitely.

Chief Justice Valerie Stanfill has made several eloquent pleas to law firms to help out, but it isn't clear, under current standards, whether there are enough attorneys available to make much of a dent in the backlog, let alone clear it.

That reality was among the reasons Superior Court Judge Michaela Murphy rejected a proposed settlement between ACLU Maine and the state that would have created still higher attorney standards, and put a four-year moratorium on litigation while details were worked out.

Murphy cited the inability for defendants to sue for inadequate representation in the meantime, but the unresolved case buildup was also much on her mind.

What might seem obvious to those outside the commission has not yet moved it to action: Some temporary waiver of standards may be necessary to get enough attorneys into the pipeline to get the docket moving again.

Retired state Supreme Court Justice Donald Alexander is the only commission member to favor such a move, and time is short to come up with a solution.

Supporters of current standards argue that those accused of serious crimes shouldn't be represented by someone untrained in criminal proceedings, and of course they are right.

But the backlog includes many routine appeals and motions that could be handled by a recent law school graduate, who under appropriate supervision by a veteran attorney might gain valuable experience,

What might seem obvious to those outside the commission has not yet moved it to action: Some temporary waiver of standards may be necessary to get enough attorneys into the pipeline to get the docket moving again.

whatever their ultimate legal career turns out to be.

As Alexander points, even Justice Stanfill – who worked on indigent appeals earlier in her career – wouldn’t have qualified under current rules, which require filing five earlier appeals and appearing once before the Supreme Court before doing any NCILS work.

Working out details for a short-term waiver program would doubtless require ingenuity and compromise, but what’s the alternative?

At some point, judges may have to start dismissing cases based on constitutional guarantees to a speedy trial – a much worse outcome.

As other writers have pointed out, the ultimate answer may be a full-fledged public defender system, for which the Legislature has authorized pilot funding. But that will take years to build, and there’s no time to waste.

Even then, a hybrid system is more likely, with public defenders taking the most difficult cases, especially homicides, while volunteers handle less serious charges and routine appeals.

Without concerted attention to the current crisis, it’s hard to see how the system will ever get built, however. In terms of cases and available attorneys, things are getting worse, not better.

What Stanfill, Murphy and Alexander are all essentially saying can be amplified through testimony at the commission’s Oct. 11 hearing in Augusta on its comprehensive rules.

If enough attorneys and members of the public say “Solve the immediate crisis first,” it may finally start listening.