State advisors to the U.S. Commission on Civil Rights plan to apply more pressure to Maine leaders to overhaul the state’s indigent public defense system with a report that finds the system may disproportionately affect people in federally protected groups.

People of color, people with disabilities and non-English speakers are more likely to need legal assistance from Maine’s indigent defense system, and they also may be more likely to be affected by a lack of quality and capacity in the current system, according to the Maine Advisory Committee to the national civil rights commission in a draft report expected to be finalized next month. 

The group plans to recommend the U.S. Department of Justice investigate if the state is providing effective and meaningful representation of poor defendants at risk of incarceration. 

“The entity that will have the greatest impact on protecting civil rights is the Department of Justice. You can bring individual lawsuits but it’s the Department of Justice that talks about real structural change,” said Eric Mehnert, a civil rights lawyer who serves on the Maine Advisory Committee.

Mehnert, the Chief Judge of the Penobscot Nation Tribal Court, worked as a court-appointed attorney for poor criminal defendants from the 1990s through 2010. He is one of several volunteers who advise the U.S. Commission on Civil Rights about civil rights issues in Maine.

All 50 states and Washington, D.C., have an advisory committee that studies and makes recommendations to the U.S. Commission on Civil Rights about deprivations of rights or discrimination based on race, color, religion, sex, age, disability and national origin, or the administration of justice in their state.

In Maine, the legal representation poor defendants receive has always been uneven, Mehnert said. Some people are assigned inexperienced defense lawyers and others are assigned lawyers who built long careers in criminal defense. 

“It depends on the luck of the draw,” Mehnert said.

The draft report recommends the national civil rights commission press state leaders to fund Maine’s existing indigent legal services office, develop a “robust and well-structured hybrid public defender system,” and provide data on federally protected classes of people, among other proposed reforms.

The draft report also recommends the University of Maine School of Law develop educational tracks for students to go into public defense, as well as offer night and part-time programs to train lawyers interested in public defense.

Maine was the only state that did not employ public defenders until late last year. Judges instead appoint private lawyers contracted with the Maine Commission on Indigent Legal Services, or MCILS, to represent adults and children charged with crimes, and parents accused of child abuse or neglect who cannot afford their own attorneys.

The unique public defense system has attracted the ire of civil rights advocates for years. And in March 2022, the Maine ACLU sued MCILS leaders for their alleged failure to create an effective public defense system in violation of poor defendants’ constitutional rights. Both sides are working on an agreement to settle the class action lawsuit, the Monitor reported.

State lawmakers added nearly $1 million to the budget in 2022 to hire Maine’s first five public defenders, who travel and work on criminal cases in counties where local defense lawyers cannot fully meet the demand. Hiring a few public defenders was never seen by the leader of MCILS as a complete solution to the state’s public defense shortcomings. 

Now, members of the state advisory committee are poised to add their voices to the chorus of people and organizations that have called for systemic reform to how Maine provides legal services to its poor.

“It sends a message that there is a deep concern about protecting civil rights, particularly the right to counsel within the state,” Mehnert said. 

The group heard testimony between October and December last year from lawyers, academics, state lawmakers and former criminal defendants about their experiences with the state’s indigent defense system. They met Thursday to review recommendations in the draft report, and plan to vote July 13 on a final version.

The draft report found that the state’s public defense system is underfunded and unable to meet the demands of indigent clients, which hurt lawyers providing and defendants receiving legal services through Maine’s system. The draft report says public defenders should have the same resources as prosecutors. 

Separate surveys by MCILS in recent years showed that many defense lawyers contracted with the state don’t have health insurance, disability insurance or access to student loan forgiveness programs.

“The Sixth Amendment tells us that we need to have someone on our side to counsel us when we get in trouble with the law, and when government wants to take away your freedom, your liberty and your life you need not just a speedy trial but also someone who isn’t worried about their mortgage, or their healthcare or their parking, to be on your side and counsel you,” said Samantha Le, chairwoman of the state advisory committee.

Le lived in a refugee camp in Hong Kong before moving to California as a child. Her parents were fleeing the Vietnam War. Growing up, her family was poor and her parents didn’t speak English, said Le, who moved to Maine as an adult.

“If my parents were … picked up (by police), they don’t know any English and they’re poor. I could just imagine them being in a situation where they would just admit and plead guilty to get the monkey off their back and not know what they’re going into,” Le said.

The purpose of MCILS when it was created by the state legislature in 2009 was to “provide efficient, high-quality representation to indigent criminal defendants,” according to state law. 

In the past year, Maine has seen a dramatic decline in the number of attorneys willing or available to accept cases through MCILS, which has left some poor defendants without a lawyer for days or weeks at a time. At least some lawyers stopped accepting new cases because they had too many that were open.

The state advisory committee considered on Thursday whether to recommend that the state lessen its use of plea deals to settle cases, though it ultimately didn’t settle on any language to add to the report.

“A plea deal in and of itself might not be bad, but when defense attorneys are so overwhelmed and overworked that they’re pressured into … encouraging (clients to take a plea deal) just because they have such a backlog — it’s not fair and it kind of defeats the purpose of having defense,” said committee member Diane Khiel.

In a memo to Gov. Janet Mills earlier this year, the advisory committee asked for more funding to MCILS to ensure it was providing effective services to the state’s poor.

Retired state Rep. Jeff Evangelos, an Independent, wrote to U.S. Attorney General Merrick Garland in December 2022 to ask the Department of Justice to investigate Maine’s court system, the Monitor reported at the time.

This week the judicial branch published a report by the National Center for State Courts, which found Maine has too few judges and court clerks to keep up with current cases. The state courts need nine more judicial officers and nearly 40 more court clerks to keep up with current cases, the report said. 

The report’s findings do not address the backlog of criminal and civil cases, which accumulated during the COVID-19 pandemic due to court restrictions. Court leaders predicted earlier this year that they may not begin to address the backlog of cases until 2028.