The state and the ACLU of Maine have reached a tentative settlement agreement in a lawsuit that claims the state has failed to provide adequate legal representation to low-income criminal defendants.
Under the agreement, which is subject to a judge’s approval, the state would set minimum performance standards and conduct regular evaluations of private defense attorneys who take on low-income clients. It would also require the state to provide training to attorneys and create a process for handling performance complaints.
The state also agrees to expand the fledgling public defender's office that was created last year in response to a dire shortage of private defense attorneys willing to take on low-income clients because of the high workload and low compensation. Maine would also create a post-conviction review and appellate unit. In return for those and other changes, the ACLU of Maine agrees to drop the remaining claims in its class action lawsuit against the Maine Commission on Indigent Legal Services for at least 4 years.
According to the settlement, the reforms would build on the recent changes that, in addition to establishing a small public defender’s office, nearly doubled the hourly rate paid to private attorneys working with the commission.
“Rather than impose a set of one-time reforms that may be out-of-date by next year, the proposed settlement requires the parties to engage in a robust, ongoing campaign to continue the work of reforming Maine's indigent defense system,” reads the agreement. “At the same time, the proposed settlement mandates concrete changes, with measurable metrics, to facilitate continued improvement. There is no quick fix or single solution to the current and future challenges to Maine's indigent criminal defense system. The Proposed Settlement provides meaningful short and long-term reforms in the State's provision of indigent legal services.”
Superior Court Justice Michaela Murphy is slated to hold a hearing on the proposed agreement on Wednesday. But some defense attorneys are already questioning whether it is an adequate response to a system that all sides say is in the middle of a “crisis.”
Lewiston defense attorney Jim Howaniec called it an "ivory tower approach" to a problem that is going to require massive investment.
“We are in an incredible crisis right now,” Howaniec said. “We have poor people sitting in jails waiting for trials that are years away. We are scheduling murder trials into late-2025 right now. This is outrageous. And yet nobody seems to be grasping the magnitude of the crisis here. So just to come forward and say, ‘Let's set goals for better training standards and eventually getting to a public defender's office,’ that's not dealing with the immediate reality that almost every single, existing rostered criminal defense lawyer right now is completely maxed out in their caseloads."
Retired Supreme Judicial Court Justice Donald Alexander, who was named as a defendant in the case, said Maine's indigent legal system mostly works well. But he’s concerned that the settlement is too prescriptive and that both parties should, instead, look to make it easier for lawyers to take cases. In addition to setting performance standards, the agreement sets minimum qualifications for newly enlisted defense attorneys and gradually ratchets down the percentage of participating attorneys who do not meet those qualifications.
"We need to be welcoming, rather than putting up a lot of barriers to getting people to do it,” Alexander said in an interview.
Until last year, Maine was the only state in the nation that relied entirely on private attorneys to represent defendants who could not afford to hire their own lawyers. Participation in the program plummeted in recent years, however, even as the number of criminal cases coming into the system as well as backlogged grew.
The ACLU of Maine filed its lawsuit against the Maine Commission on Indigent Legal Services last year, claiming the state is failing in its constitutional obligation to provide attorneys to low-income criminal defendants. Since then, state lawmakers created a small, public defender office to take cases in rural Maine and dedicated additional money to the commission to increase hourly reimbursement rates from $80 to $150 an hour. And the administration of Gov. Janet Mills has proposed expanding that office.
The ACLU declined to comment on the proposed settlement before it was finalized. But The attorney Carol Garvan with the organization said the judicial review of the settlement could take up to three months.
