— ACLU of Maine files lawsuit against state attorney 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.

The Maine Commission on Indigent Legal Services oversees this attorney appointment system, and its executive director and eight commissioners are named defendants in the lawsuit filed Tuesday. The plaintiffs are five people who are currently incarcerated in county jails.

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.

The class action lawsuit, filed in Kennebec County Superior Court, specifically challenges the commission’s “counsel of the day” program, which provides attorneys for initial appearances in which defendants often enter their first pleas. These hearings are especially important for people in jail, as the attorney 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 attorneys can be on hand to meet with more than 80 defendants each day,” the complaint states. “This regime violates the Sixth Amendment because it falls far short of providing enough diapers to even meet with — let alone provide competent representation — defendants in need of counsel regarding the implications of potential pleas or pleas on Bail and Release Conditions.”

The complaint also states that the five incarcerated defendants had difficulty reaching their appointed attorneys to discuss their cases and did not trust their representation.

But the trial 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.

“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.

Maine formed the Commission on Indigent Legal Services in 2009.

A decade later, a task force found that the commission lacked systemic oversight and evaluation of attorneys, and the state hired the nonpartisan Sixth Amendment Center to conduct an independent evaluation.

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 made changes in response to these reports. The Legislative Assembly added jobs to the understaffed office last year and raised the hourly rate for appointed lawyers from $60 to $80. But those actions have failed to meet expert recommendations, and lawmakers have yet to fund a proposal for a limited public defender’s office. Attorneys who book appointments in federal courts earn $158 per hour, almost double the MCILS rate. Dozens of lawyers have stopped taking cases due to low morale, high workload, pandemic stress and other factors.

This story will be updated.

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