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No matter what a judge decides regarding a lawsuit challenging the state’s system of indigent defense, the state needs to continue its overhaul of the broken system. And, it needs to do it with more urgency.
Superior Court Justice Michaela Murphy will soon decide whether to accept a settlement in a case that called Maine’s system of hiring private lawyers to represent low-income clients unconstitutional.
The settlement would pause the lawsuit, filed by the Maine ACLU, for four years in exchange for a slate of reforms that include more training for lawyers who volunteer and a commitment to advocate for more resources.
These steps seem inadequate to the scale of the problem, and at a hearing on the proposed settlement late last month, Murphy quickly shared her skepticism with the plan.
“And I think I was trying to suggest to you all that if there was going to be a settlement, it was going to have to address the looming emergency that I think everybody recognizes,” Murphy said.
That emergency, which Murphy said she routinely views in her courtroom, is a chronic shortage of attorneys willing to represent the state’s low-income defendants. Lawyers who do take on this work are overwhelmed, the justice said.
It all adds up to an arrangement that can deprive defendants of their rights to a speedy and fair trial, while also potentially disrupting their lives, jobs and relationships with family members. The system also costs taxpayers increasing sums to keep people in jail for extended periods of time while they await court dates.
The situation is so bad that the state’s chief justice, Valerie Stanfill, recently wrote a letter to the state’s largest law firms asking them to help.
“As I am sure all of you know, Maine is facing a crisis with respect to the availability of constitutionally required counsel in both criminal and child protective cases,” Stanfill wrote. Although the Legislature nearly doubled the pay for lawyers to accept appointments through the Maine Commission on Indigent Legal Services, “the crisis is worsening,” the chief justice said in the Aug. 24 letter. “Last week there were over 100 cases pending in which a person is entitled to appointed counsel and for whom no attorney is available.”
Stanfill urged the firms to encourage their lawyers to take some of these cases. More specifically, she asked that the firms encourage recent law school graduates to clerked for the Maine Supreme Judicial Court to take on child protective cases. She listed these lawyers by name.
While some of the firms have said their lawyers will participate, Joan Fortin, the CEO of Bernstein Shur makes a persuasive case for why this is inadequate and the state needs a long-term solution, namely a fully staffed public defenders office. Maine is the only state without such an office.
For one, the landscape of lawyering is changing. Years ago, many lawyers wanted to be on their own or part of a small firm. These lawyers formed the backbone of the state’s indigent defense system.
Increasingly, lawyers value firms where they have access to more training, benefits and colleagues. Therefore, a system that relies on independent lawyers or lawyers from small firms to take on these cases is outdated, Fortin, who has long been involved in attorney recruitment at Bernstein Shur told the BDN editorial board.
In addition, Fortin noted, the lawyers at her firm are not well versed in criminal and child welfare law, although the firm has committed to supporting lawyers who want to be rostered and trained to help with these cases, in addition to the pro bono work that the firm’s lawyers already do.
The biggest issue is that the state is failing to meet its constitutional obligation to ensure a right to counsel and a speedy trial, and it is now passing that responsibility on to many of the state’s law firms.
“It is unconscionable that the state is not fulfilling their constitutional obligation,” Fortin said. She notes that without needed representation, parents could lose their parental rights and some defendants will remain in jail awaiting court dates to determine their guilt or innocence.
Maine lawmakers have approved funding for public defenders in Maine, but the new system remains underfunded and has already had staff turnover.
There is broad agreement that Maine needs a system of public defenders. Lawmakers need to provide adequate funding to build this system much more quickly.
