Judge warns of “constitutional crisis” if shortage of defense lawyers not fixed soon

“We just don’t know how far things can slide before we really are in a constitutional crisis,” a Superior Court Justice remarked.
A bronze statute of a scales of justice figurine.
Maine's unique public defense system has attracted the ire of civil rights advocates for years, and led to a class action lawsuit filed by the ACLU in 2022. Photo by wesvandinter/iStock.

Superior Court Justice Michaela Murphy on Wednesday said the state’s system of providing defense lawyers to indigent clients has “deteriorated significantly,” and she instructed lawyers for the state and ACLU to settle or prepare to litigate whether the system should be overhauled.

“There is widespread concern among those of us who work in criminal court rooms that things have gotten markedly worse than they were six months ago, as far as stability and capacity,” said Murphy, who usually hears criminal cases. “We just don’t know how far things can slide before we really are in a constitutional crisis.”

Murphy’s comments came Wednesday afternoon after the attorney general’s office reported that it has not finalized a settlement with the ACLU. Settlement negotiations have been ongoing since late last year about how to resolve a class action filed by the ACLU on behalf of low-income criminal defendants, who allege Maine officials failed to create an effective public defense system.

Murphy said that the shortage of available defense lawyers was no longer isolated to rural areas of the state and that bigger courts in Portland as well as Penobscot, Androscoggin, Kennebec and York counties are “hitting bottom” in the search for defense lawyers.

She said in Kennebec County there were no lawyers taking cases, except for homicides. A local lawyer had a medical emergency and it took six weeks to reassign his 200 cases, she said. 

“I think there is consensus among the judiciary that things have deteriorated significantly and I think a lot of people are looking for some relief from this litigation if that is possible,” Murphy said.

The Maine Commission on Indigent Legal Services, or MCILS, is responsible for providing a lawyer to every criminal defendant who cannot afford to hire their own. MCILS contracts with private defense counsel to meet the vast majority of this need. The state also employs five public defenders.

In July, MCILS sent emails saying there was a “critical shortage of attorneys” and that lawyers were “urgently” needed for cases. The agency had more than 100 cases on July 13 and 14 that did not yet have a lawyer assigned to it, the Monitor reported at the time. 

Appointed commissioners who oversee MCILS reviewed a proposed settlement during a confidential executive session in July, said Assistant Attorney General Sean Magenis, who is defending the state in the class action.

Commissioners are scheduled to review a final settlement and potentially vote on it during their August 21 meeting, Magenis said. The state anticipates notifying the court of the commissioners’ decision within a week of the meeting.

A spokeswoman for the attorney general said the office had no comment on Murphy’s remarks.

Murphy said she has not seen a draft of the settlement, which will need her approval. She noted that the $150 an hour pay raise for defense lawyers that went into effect in March appeared to have not lived up to its promise of bringing defense lawyers back to MCILS to accept more cases. Murphy said she expected any new funding to be a part of the settlement now that legislators have finished their work for the year.

State lawmakers approved a budget with $1.6 million for MCILS to hire six more public defenders as well as a district defender supervisor, a deputy executive director and support staff.

Zach Heiden, the chief counsel for the ACLU of Maine, said he shared Murphy’s assessment that the lawyer shortage was “dire.” He said he monitors MCILS’s lists of available defense lawyers and cases that still need lawyers each day.

“We hear you loud and clear,” Heiden said to Murphy.


Samantha Hogan

Samantha Hogan focuses on government accountability projects for The Maine Monitor. She joined the newsroom as its first full-time reporter in 2019 with Report for America. Samantha was named the 2021 Maine’s Journalist of the Year by the Maine Press Association, and spent 2020 reporting on Maine’s court system through the ProPublica Local Reporting Network. Her reporting on county jails recording and listening to attorney-client phone calls won the Silver Gavel award from the American Bar Association and was also a semi-finalist for the Goldsmith Prize for Investigative Reporting in 2023. Samantha previously worked for The Frederick News-Post and interned twice for The Washington Post.
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