Due process? A court system in the crosshairs

A lack of consistent data, district attorneys with differing agendas and inconsistencies with services offered around the state have many pushing for reforms to Maine’s court system.
A defendant holds his face in his hands
A man holds his face in his hands as he enters a guilty plea on charges of violating bail during an arraignment at the Cumberland County Courthouse earlier this week in Portland. Photo by Gabe Souza.

Maine’s criminal justice system is coming under heavy scrutiny as the legislative session begins, with dozens of proposed bills addressing concerns about inconsistent practices and services, fairness and a lack of hard data on how courts are functioning.

Dozens of people served on committees, commissions and task forces in 2019 in hopes of instituting reforms for those accused of crimes, victims of crime and state taxpayers. They’ve also been studying ways to reduce the number of people held in county jails, how to help juvenile defendants and those with mental illness, and how to continue to fight opiate addiction.

“All of those groups are working from some data, a lot of good-faith estimates and anecdote,” Maine Supreme Judicial Court Chief Justice Leigh Saufley said. “That is what we are hoping in the future to dramatically improve upon with real, hard data.”

Some improvements have begun, such as a $16.8 million upgrade to the judicial case filing system, designed to save time and money on court paperwork.

But plenty of significant issues remain. Many point to ongoing inconsistencies in services from one part of the state to another, and a lack of standard practices that could lead to different outcomes for people depending on where they live.

Seven months ago, the Maine Monitor set out to determine whether Maine’s county court system was fair and consistent from one part of the state to another. What seemed like a simple question turned out to be complicated by a lack of consistent data, district attorneys with different approaches to justice, and programs available in some areas but not others.

For the next 10 weeks, the Monitor will examine the successes and failures of the system to determine whether defendants and victims can rely on it to give them due process. Our reporting will zero in on many of the different challenges facing Maine’s court system, with a heightened focus on consistency across the state, the growing demand for change and what it will take to improve the judicial climate in Maine. 

“If the kind of justice you get is dependent on whether you got arrested in Lisbon Falls or Madawaska, that’s arbitrary and that’s not justice,” said Zach Heiden, the Maine ACLU legal director.

Biddeford District Court
People file into the Biddeford District Court to make their initial court appearances earlier this month in York County. Photo by Gabe Souza.

A matter of consistency?

Maine Pretrial Services is a private, nonprofit organization that provides pre-trial services in 11 of Maine’s 16 counties. It works closely with the state’s specialty courts to address drug and alcohol abuse and those with mental illness and substance use disorder.

Throughout the state, decisions made before someone is convicted of a crime, particularly bail, can vary widely, said Elizabeth Simoni, its executive director.

Zachary Heiden
Zachary Heiden

“When you’re talking about pre-trial decision-making, it’s up to the judge to decide. It really can differ even within a county,” Simoni said.

The lack of consistency is a concern for Heiden, who says there aren’t always standard practices within the same courthouse. As an example, he said he’s become more and more concerned about people who decide to represent themselves, often as a way of expediting the legal process.

“There’s a lot of variation in how judges deal with that,” he said, adding that judges should carefully consider whether someone is fully aware of the rights they are giving up.

As far as geographical differences, Heiden said there should be consistent rules regarding how prosecutors may speak to defendants without a lawyer present, and more consistent standards “so every court is doing things in an equally rigorous way.”

Simoni said when it comes to programming for people before and after they are convicted, opportunities are “not consistent across the state.”

Tracking what happens to defendants in one part of the state versus another can be difficult. In addition to geographic differences, the ACLU has seen people treated differently based on race, ethnicity and class, said Alison Beyea, executive director of the Maine ACLU.

Maine Supreme Judicial Court Chief Justice Leigh Saufley
Maine Supreme Judicial Court Chief Justice Leigh Saufley

Saufley said more detailed information about outcomes — she gave the example of being able to track a juvenile defendant through the system — will help when she and lawmakers work to target money for certain parts of the state. 

District attorneys with different priorities is another big driver of inconsistent outcomes around the state. 

“We know there are a lot of differences in how each region addresses various kinds of criminal charges,” Saufley said. “We believe each region has unique criminal charge aspects, unique cultural aspects. Aroostook County does not look like York County in a variety of different ways. And learning more about what’s actually in the court in the various regions will help us get the resources to them, the right amount of resources they need, and not to over-resource if they don’t need it.”

Those who work within Maine’s courts see an opportunity to reform a system with a low crime rate, low incarceration rate and relatively few violent crimes. Consider: Maine is the safest state in the country when it comes to violent crime, with the fewest violent crimes (121) per 100,000 people. It ranks fourth lowest in property crimes with 1,507 per 100,000 residents, according to an analysis of 2017 crime statistics by the Council of State Governments.

“Maine is routinely in the top three safest states in the country,” said Michael Sauschuck, the Maine Department of Public Safety commissioner.

From 2007 to 2017, arrests dropped 30 percent, from 57,623 to 40,392, according to the Council of State Governments, which is conducting a comprehensive review of Maine’s criminal justice system.

In 2018, crime was down for the seventh straight year, with violent crimes (murder, rape, robbery and aggravated assault) down 5.8 percent from the previous year and property crimes (burglary, larceny, motor vehicle theft and arson) down 9.6 percent, according to Crime in Maine 2018, an annual compilation of crime statistics released by the Maine Department of Public Safety.

For Kennebec and Somerset District Attorney Maeghan Maloney, the low crime and low incarceration rates show the state is doing some things right. One stumbling block for her and other district attorneys are mandatory minimum sentences – legislative mandates for prison time for certain crimes. She says that has shifted too much power from judges to district attorneys.

In her district, she tries to reserve incarceration for the most violent crimes, particularly those against children. But for many other convicted criminals, there are other options.

“There’s a place for incarceration but it’s for a minority of cases,” she said. “For the most part we can look at people’s lives and we can use rehabilitation and we can have different sentencing alternatives that keep the person a part of our community, and do that successfully.”

Maine’s lack of digital court records is expected to be addressed through a $16.8 million upgrade to the state’s judicial case filing system. Photo by Gabe Souza.

‘Pent-up demand’

Department of Corrections Commissioner Randall Liberty, a former longtime county sheriff and state prison warden, said he sees momentum with Gov. Janet Mills, who took office just over one year ago, and a Legislature looking to make significant changes. With lawmakers back in Augusta for a four-month session, more than a dozen bills related to crime and punishment await their consideration.

“When the Legislature sat last January, there was a lot of pent-up demand to get something done after a tough eight years,” said Liberty, who said former Gov. Paul LePage slowly dismantled a statewide commission dedicated to improving county jails — a panel Liberty would like to see reconstituted.

Randall Liberty

Liberty supports bail reform – too many people are in county jails because they can’t afford to pay even a small amount of bail, he said. He also has concerns about legal representation for Maine’s poor. A report released last April by the Sixth Amendment Center, and subsequent reporting by the Maine Monitor, showed the state’s indigent legal services system does not consistently provide high quality representation and has experienced billing irregularities.

Liberty also said uneven funding of Maine’s county jails means inmates may or may not have access to mental health and education programs, medication assistance or help for substance use disorder, depending on where they are being held.

“For those folks with mental health diagnoses, there are hubs of programs but they are not available all over the state,” he said.

Saufley said the need for community-based programs has been apparent for years and is something she hopes will benefit from the new types of data that will be generated by the upgraded court computer system. She said a comprehensive approach to housing, health care, substance use disorder and mental health needs will result in finding ways to keep people from returning to the criminal justice system.

“My theory is that the first time someone comes into a criminal courtroom, we should be doing a full, integrated assessment of that person and figure out how it is the system can respond in a way that that person never comes back on a criminal charge,” she said.

The system handled 198,790 cases in fiscal year 2018, including 88,718 traffic infractions, 50,126 criminal filings and 27,600 civil filings, according to the court’s annual report. Like the state’s crime statistics, those numbers are down compared to seven years ago, when there were 260,098 total cases, 116,490 traffic infractions, 58,315 criminal filings and 41,558 civil filings, according to the 2011 annual report.

Spending on the Judicial Branch represents $74.5 million, just over 2 percent of the state budget, according to the judicial branch’s 2018 annual report. Of that, about $45 million funds personal services, $11 million is paid out in debt service and about $6 million is spent on facilities.

One complaint from district attorneys is there are too few judges, which Saufley said will be dealt with early this year. Nominees for the three vacancies on the bench should be announced this month and those positions – along with three retired judges who can fill in as needed – should be filled by the spring, she said.

Sauschuck, the former Portland police chief who leads the state’s public safety department, said one thing he hears on task forces is an interest in addressing underlying issues – mental illness or substance use disorder — that lead someone to come into contact with police.

“We’re at the table talking about diversion and de-escalation a lot of times,” he said.

Maine District Court Judge Deborah Cashman
Maine District Court Judge Deborah Cashman presides over in-custody arraignments for inmates at the Cumberland County Courthouse in Portland. Photo by Gabe Souza.

Action — and delay

While dozens of recommendations will come forward this legislative session, lawmakers and advocates hoped to get an added boost from the Justice Reinvestment Initiative, a national data-driven approach to improving the criminal justice system. Maine is among the latest group of states to go through the process in which staff from the Council of State Governments Justice Center, funded by the U.S. Department of Justice and Pew Charitable Trusts, examine all aspects of crime, sentencing and corrections.

Since 2007, 35 states have reformed sentencing and corrections policies after getting help from the program, all in an effort to “improve public safety and control taxpayer costs,” according to a fact sheet from Pew.

“It’s a real frustration of having to get legislation passed only to regurgitate what we knew. Now we have the data and we can’t articulate what the policy needs to be. We don’t have anything in here that talks about the human condition.”

— Rep. Rachel Talbot Ross (D-Portland)

But those hopes were delayed in December when the Council of State Governments informed the Commission to Improve the Sentencing, Supervision, Management and Incarceration of Prisoners that it needed several more weeks to crunch numbers in order to offer meaningful recommendations.

The council did offer four proposals: The first was to fund “community-based resources to keep people out of the criminal justice system, provide meaningful alternatives to incarceration, improve the likelihood of success or re-entry and reduce recidivism.”

Jenna Mehnert, executive director of the National Alliance on Mental Illness Maine, said the recommendation was too broad to have any real meaning.

“If there’s not any meat to them, I don’t know where it gets us,” she said.

Rep. Rachel Talbot Ross (D-Portland), who sponsored the legislation to invite the Council of State Governments to study Maine’s system, said the process did little to include public input, something she described as “hugely frustrating.”

“It’s a real frustration of having to get legislation passed only to regurgitate what we knew,” she said. “Now we have the data and we can’t articulate what the policy needs to be. We don’t have anything in here that talks about the human condition.”

Ben Shelor, senior policy analyst for the Council of State Governments Justice Center, said he and his staff analyzed “well over 1 million case records,” starting in late summer. But he said given more time, he and his staff could come up with better recommendations.

“I agree with you, this is largely a waste of paper,” he said while holding up the recommendations during a meeting at the Capital Judicial Center in Augusta. “There is a tremendous amount of honing and shaping that can be done over the next couple of months.”

The commission voted unanimously to submit a bill to the Legislature to ask for the council to have more time to finish analyzing the data and come up with more concrete recommendations. The other three recommendations in the first batch of proposals called for using probation as an alternative to incarceration, providing more training and staffing in the corrections system, and better and more consistent data collection.

Justice William Stokes, a member of the commission, urged the continuation of the work, noting that the commission had not yet fulfilled its duties.

“To be honest, the data is terrific but that’s only the beginning,” he said.


Susan Cover

Susan Cover has been a journalist for 24 years, working at newspapers in Kansas, Rhode Island, Ohio and Maine. In 2002, Susan moved to Maine to cover state government and spent 10 years in the Statehouse Bureau working for the Kennebec Journal. She covered state budgets, hundreds of bills, and referenda campaigns including bear baiting and marriage equality. In 2013, Susan was promoted to city editor at the Kennebec Journal, leading a team of reporters and photographers to put out each day’s paper. Susan is a graduate of Muskingum University in Ohio and has a master’s degree in newspaper journalism from Syracuse University. Most recently, Susan left daily newspaper journalism to pursue freelance writing and her other passion – taking run-down houses in Kennebec County and bringing them back to life. She lives in Augusta with her partner and their pets – Piper the cat and Wooley the dog.
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