A proposed settlement agreement that promises to “dramatically reshape” the state’s delivery of indigent-defense services has been reached between state officials and the ACLU of Maine.
The proposal would overhaul nearly every aspect of the agency that oversees indigent defense in Maine and enhance oversight of its operations and the lawyers who serve poor clients during the next few years.
It sets new standards for lawyers, orders a top to bottom review of how attorneys handle cases and calls for future advocacy to add an unspecified number of public defenders to do appellate and post-conviction cases. It would pave the way for Maine to transition to a hybrid public defense system made up of private lawyers and public defenders.
“There is no quick fix or single solution to the current and future challenges to Maine’s indigent criminal defense system,” the settlement document says. “The Proposed Settlement provides meaningful short and long-term reforms in the State’s provision of indigent legal services.”
The settlement now goes to Justice Michaela Murphy, who must consider the “fairness, reasonableness and adequacy of the settlement” for the class of thousands of indigent defendants on whose behalf the ACLU brought the lawsuit. The settlement cannot be finalized without her approval. The agreement was reached on Aug. 21 but it was not publicly available until this week.
“There will be some improvements by having some standards and things like that, no question about it. My concern is that the standards are so rigorous they may either be making it difficult for very good attorneys, who could help the poor, to join or to get attorneys to come back,” said Donald Alexander, a retired justice of the state Supreme Court and one of the defendants in the lawsuit.
Alexander opposes the agreement, and is concerned that it treats the ACLU differently than other organizations — the state bar and trial lawyers associations — that have also spent years working to reform Maine’s system for providing lawyers to the poor.
Josh Tardy, chairman of the commission that approved the settlement agreement, did not return multiple phone calls seeking comment.
The Maine Commission on Indigent Legal Services, or MCILS, is responsible for providing attorneys to adult criminal defendants who cannot afford to hire their own lawyer.
Maine is obligated by the Sixth Amendment of the Constitution to provide an attorney at the state’s expense, and until late last year, Maine was the only state to exclusively use private attorneys to do so.
“The current system has failed low-income people accused of a crime in Maine, denying countless people their Sixth Amendment right to effective assistance of counsel,” ACLU of Maine spokesman Samuel Crankshaw said Tuesday. “We are proud to advance this issue in Maine because a person’s freedom should never depend on their wealth.”
The ACLU of Maine sued the executive director of MCILS and its eight appointed commissioners who are responsible for overseeing the agency’s operations in March 2022. The complaint alleged that they had failed to create an effective public defense system for adult criminal defendants who were too poor to hire their own lawyers.
In recent months, the state’s chief justice, individual lawyers and justice Murphy have all described the criminal court system as overloaded and broken. The Maine Monitor reported earlier this month that the state was on the verge of a “constitutional crisis” unless the stability and capacity of criminal defense lawyers for the state’s poor improved.
If the settlement is approved, the lawsuit will be paused for four years while the reforms are rolled out. MCILS will need to regularly provide information to the ACLU to prove it is complying with the settlement agreement during that time or litigation will resume.
Commissioners have been publicly working on rules and standards that are integral to the settlement for several months already. Neither side had previously disclosed details of the negotiations.
In July 2023, the commissioners approved new caseload limits that cap how many cases a lawyer may be assigned by the courts. The rule will take effect in January 2024.
As part of the settlement, MCILS agreed to enforce those caseload limits for most of the lawyers it oversees, in an attempt to ensure they will not be overloaded. The settlement says the agency will not waive caseload limits for more than 25% of lawyers during the first two years and no more than 10% afterwards.
Within a year, MCILS has also agreed to update its rules about the minimum qualifications for lawyers to serve as court-appointed attorneys through the commission. MCILS will also update its standards to work on specialized cases, such as murder, domestic violence or juvenile cases.
The executive director of MCILS has the authority to waive either the required trial experience or years of experience needed to work on certain types of cases if the lawyer does not have both.
Within two years 85% of new attorneys taking court-appointed work from MCILS and half of all existing lawyers doing this work will need to meet the commission’s set standards.
In five years, the courts made at least 2,000 assignments for complex criminal cases that required a specialized attorney to lawyers who were not eligible to work on those case types or lacked the requisite years of experience, an investigation by the Monitor and ProPublica published in 2021 revealed.
MCILS’s director at the time, John Pelletier, had routinely overlooked the agency’s own rules and approved the court’s assignments. Pelletier had also never enforced MCILS’s standards for lawyers to defend parents at risk of losing custody of their children between 2011 and 2020, the Monitor reported.
Within three months of the settlement being approved, MCILS and the ACLU of Maine will begin a system-wide performance evaluation. They will look at data and regularly observe court proceedings across the state to identify needed changes within 18 months.
MCILS will also be required to begin evaluating individual attorneys with targets of doing random individual evaluations of 20% of new counsel and 5% of lawyers that have done commission cases for five or more years.
Evaluations will include at least one in-person court observation and a review of time records, three randomly selected cases and three samples of the lawyer’s written work from the prior year, according to the settlement.
MCILS has also agreed to investigate and resolve 95% of all complaints about attorney performance within the next three years.
Several of the large-scale reforms proposed in the settlement, including adding employees and public defender units dedicated to appellate and post-conviction case work, require money from the state government.
MCILS and the ACLU have agreed to jointly advocate to lawmakers for funding for the reforms that require state funding. An estimated cost of the overhaul has not been established.
“These provisions represent a unique solution to the reality that it is not possible — whether through settlement or judgment — to compel particular appropriations from the state treasury,” according to the proposed settlement.
State lawmakers approved funding to open the state’s first public defender office earlier this year, providing money to hire five trial-level public defenders, a supervisor and a new deputy director.
Conditions in the criminal court system have deteriorated since the ACLU filed its lawsuit in March 2022. Judges, court clerks and MCILS have struggled to find enough defense lawyers to provide an attorney to every person that needs one.
Some defendants have gone weeks without being assigned an attorney, MCILS emails show.
Justice Murphy warned the parties earlier this month to be ready to litigate the case if it did not reach a settlement, the Monitor reported. She said the state’s system of providing defense lawyers to indigent clients has “deteriorated significantly” in recent months.
Defense lawyers who are accepting court-appointed cases said they are often overloaded.
Christopher Somma, who practices in Maine, New Hampshire, and Massachusetts, was assigned to 40 cases within six weeks of adding his name to Maine’s list of lawyers willing to do court-appointed cases in February. It was overwhelming and the emails asking for him and others to take even more indigent clients haven’t stopped, he said.
“I am not a grocery store clerk and this is not a conveyor belt. These are people,” Somma said. “I can take all the cases you want to send me, but at what point am I doing a disservice to the person I’m representing? Because there’s only so many hours in my day that I can devote to helping somebody.”
He said that the courts need to be more accommodating with defense lawyers and prosecutors need to drop less serious cases to conserve judicial resources.
Still many of the state’s criminal defense lawyers are maxed out on cases and exhausted, he said.