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 their constitutional rights. 

Maine doesn’t supervise the attorneys it contracts with to represent adults, who are charged with crimes and cannot afford their own attorney, said Chief Counsel for the Maine branch of the ACLU, Zach Heiden. For more than a decade, Maine has not implemented rules, trained lawyers or compensated attorneys properly, which has denied or creates an “unreasonable risk” that defendants will be denied their constitutional right to counsel, he said.

“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 agency is inadequately staffed and funded to supervise, train and enforce its rules with the lawyers it contracts to defend the state’s poor, government reports and press coverage shows.

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 contracted with MCILS.

MCILS contracted attorneys with criminal convictions and histories of professional misconduct to represent Maine’s poor in court, a joint investigation by The Maine Monitor and ProPublica in 2020 found. An analysis by the news organizations found 26 percent of lawyers 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.

For a decade, MCILS relied on a superficial 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 add 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 that was hired by the state Legislature to review Maine’s defense system.

The changes improved oversight of MCILS’s finances but not of attorneys and the representation they provide indigent clients, Carroll said. Its independent review of Maine’s public defense system 35 months ago 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. 

The center recommends that Maine shift to a hybrid system of public defenders and private assigned counsel.

The ACLU sued the state of New York for not meeting its responsibility to fund and manage its public defense systems in five counties in 2007. The assigned counsel, public defenders and legal aid groups providing legal services in each county failed to adequately defend indigent defendants against criminal charges, some of which carried the threat of life sentences, according to the NYCLU’s complaint. 

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.

Like in Maine, the New York lawsuit came on the heels of multiple reports, press investigations and commissions that well documented the failures of New York to “guarantee meaningful and effective legal representation” to the poor as required by the state and U.S. constitutions. 

The Spangenberg Group, a nationally recognized criminal justice consulting group, studied both New York and Maine in the early 2000s. The group recommended Maine establish a statewide commission independent of the executive and judicial branches to oversee indigent legal service, which the Legislature did in 2009. Maine leaders did not heed many other warnings that an inadequately funded commission would be unable to operate properly.

“In order to provide effective oversight, a commission must have sufficient staff and resources to perform its work. A commission cannot monitor caseloads, attorney performance and compliance with other standards, if it lacks the personnel and resources to discharge its duties,” the group wrote in its December 2006 report for Maine.

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, who was appointed as executive director of MCILS in January 2021, recently told lawmakers. The American Bar Association recommends a supervisor ratio of 10 to 1, meaning the agency needs to hire approximately 30 more people to supervise contracted counsel.

Maine is also not meeting most of the American Bar Association’s Ten Principles of a Public Defense Delivery System, Andrus said. MCILS is not financially independent of political or judicial influence and makes operational decisions based on “present and anticipated political environments.” It does not have resources equal to prosecutors, and counsel is not immediately assigned due to delays with the courts and screening 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 6th Amendment,” Andrus recently told lawmakers.