Investigating the Only State Without Public Defenders
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This article was produced in partnership with The Maine Monitor, a former member of the ProPublica Local Reporting Network.
Civil rights lawyers sued Maine officials on behalf of impoverished criminal defendants on Tuesday, alleging the state failed to create an effective public defense system in violation of defendants’ constitutional rights.
Maine doesn’t supervise the attorneys it contracts with to represent adults who are charged with crimes and cannot afford their own lawyer, said Zach Heiden, chief counsel for the Maine branch of the ACLU. For more than a decade, Maine has not implemented rules to evaluate attorneys, trained lawyers or compensated attorneys properly, he said. That has denied defendants of their Sixth Amendment right to counsel or creates an “unreasonable risk” of doing so, Heiden added.
“The state has the power to fix this problem and we’ve only brought this lawsuit really as a last resort because the state was — for whatever reason — unwilling to make the necessary changes,” Heiden said.
Maine is the only state that employs no public defenders and instead relies exclusively on private attorneys to defend the state’s poor against criminal charges and other legal matters. The Maine Commission on Indigent Legal Services, or MCILS, was formed in 2010 to meet the state’s obligation to provide lawyers to adults and juveniles charged with crimes who cannot afford to hire their own attorney.
The Maine Monitor and ProPublica reported in 2020 how MCILS hired attorneys with criminal convictions and histories of professional misconduct to represent the state’s poor in court. An analysis by the news organizations found that 26% of lawyers who were seriously disciplined — reprimanded, suspended or disbarred — between 2010 and 2020 by the state’s attorney licensing agency were later contracted by MCILS.
MCILS also repeatedly failed to enforce its own rules and allowed lawyers who were not eligible and sometimes underqualified to defend people facing serious criminal charges, including sexual assault and violent felonies, the news organizations reported last year.
“There are some excellent lawyers who are participating in the criminal defense system and there are also some lawyers who are in need of substantial training — are underperforming — the issue in our case is the state makes no efforts to identify which category those lawyers fall into and to get underperforming lawyers the remedial help they need,” Heiden said.
The agency’s executive director, Justin Andrus, and eight commissioners appointed to oversee MCILS are named in the lawsuit that was filed in Kennebec County Superior Court on Tuesday. The class action was filed on behalf of five plaintiffs who are adults currently charged with crimes, incarcerated and receiving legal assistance from attorneys paid by MCILS.
“I’ve been seeking from the beginning of my tenure the funding and authority necessary to fully comply with the requirements of a constitutionally adequate indigent defense system and this lawsuit, as far as I understand it, does nothing more than seek the same things that I’ve been seeking publicly,” said Andrus, who was appointed as executive director of MCILS in January 2021.
As recently as Friday, Andrus released an outline of proposed changes to improve the supervision and training of court-appointed counsel. Multiple defense attorneys said they opposed the proposed rules, which would require them to check-in weekly or monthly with supervisors.
An email seeking comment from the office of Maine Gov. Janet Mills, a Democrat, was not returned Tuesday morning.
For a decade, MCILS relied on a quick review of invoices that were submitted at the conclusion of a criminal case to assess attorneys’ performances. Eleanor Maciag, the agency’s deputy director since 2012, estimated she and the former director spent one to two minutes reviewing each invoice before approving the payment in 2019, she told The Maine Monitor at the time.
Maine lawmakers added $18.5 million to the state’s budget for MCILS in 2021 to hire more employees and increase the hourly pay for lawyers from $60 to $80 an hour. State lawmakers also unanimously supported legislation to open the state’s first trial-level public defender office, but it remains unfunded.
“You look at the amount of money that was increased and it looks like a lot, but most of that is just changing the assigned counsel rates and that’s just buying the same system for a greater price,” said David Carroll, the director of the Sixth Amendment Center, a nonprofit that evaluates criminal defense systems, which was hired by the state Legislature to review Maine’s defense system.
The changes improved oversight of MCILS’ finances but not of the quality of the representation that attorneys provide indigent clients, Carroll said. The Sixth Amendment Center conducted a review of Maine’s public defense system in 2018, which determined the state’s criminal docket was advancing at the expense of defendants’ constitutional rights.
The center made seven recommendations to improve how legal services are provided to defendants. State lawmakers implemented some, but not all, of the recommendations. The report was not meant to be an a-la-carte menu of reforms, Carroll said. Among the recommendations: that Maine shift to a hybrid system of public defenders and private assigned counsel.
The ACLU sued the state of New York in 2007 for not meeting its responsibility to fund and manage its public defense systems in five counties.
The case was litigated for seven years when on the day before trial, in October 2014, the NYCLU and its litigation partner, Schulte Roth & Zabel, announced a settlement mandating that New York provide lawyers to defendants during their first appearance before a judge, set caseload standards and strengthen oversight by the state-level office among other changes. The state was ordered to pay $5.5 million in lawyer fees.
The ACLU has also filed lawsuits challenging the constitutionality of criminal defense systems in Connecticut, Mississippi, Michigan, Idaho and Nevada.
MCILS is currently run by seven employees. It does not have the staff necessary to assess or remediate the representation that contracted attorneys provide to clients, Andrus recently told lawmakers.
Maine is also not meeting most of the American Bar Association’s “Ten Principles of a Public Defense Delivery System,” Andrus said. MCILS does not have resources equal to prosecutors, and lawyers are not immediately assigned because of delays with the courts and screenings for financial eligibility.
“What we are unable to do yet is move forward in the direction of a public defense system that really meets the strictures of the Sixth Amendment,” Andrus recently told lawmakers.