‘Worse by the day’: ACLU report highlights growing number of Mainers without legal defense

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The number of Mainers charged with a crime but lacking an attorney has skyrocketed over the last six months, according to a new report from the ACLU of Maine, which continues to raise concerns about the violation of bedrock constitutional rights by the state. 

The report, released by the ACLU on Tuesday, paints a stark picture of access to legal representation for those accused of a crime. The group found that 633 Mainers in need of an attorney didn’t have one as of May 8, representing a staggering 497% increase since November 1, when 106 people were without a lawyer. 

“This report shows a dire crisis that is getting worse by the day,” said ACLU of Maine legal director Carol Garvan in a news release. 

The study comes after the ACLU sued the state in 2022, arguing that Maine was violating its obligation to provide effective counsel for those who can’t afford a lawyer. After a Maine Superior Court judge rejected a proposed settlement agreement, the ACLU expanded its case against the state, citing an increase in long wait times for people to get an attorney. The state opposed sending the case back to trial, but that motion was denied and the matter will return to the Kennebec County Superior Court. 

With its case going back to trial, the ACLU plans to continue arguing that Maine is not meeting its responsibilities under the Sixth Amendment of the U.S. Constitution, which guarantees the right to a speedy trial and the assistance of counsel. 

Leaders of Maine’s judicial system have acknowledged that the state’s legal apparatus rests on shaky ground. In a speech in February, Maine Supreme Judicial Court Chief Justice Valerie Stanfill warned officials that Maine’s troubled indigent legal defense system represents a “constitutional crisis.” 

Unlike other states, Maine has long contracted out legal defense for those who can’t hire a lawyer to private attorneys, rather than relying on public defenders. That is slowly changing, with the state authorizing the hiring of more than a dozen public defenders. However, in September, Maine Superior Court Justice Michaela Murphy wrote that while more lawyers are providing short-term “lawyer of the day” representation, the number of attorneys “able and willing to go the distance with an indigent client” is still shrinking. 

In March, Gov. Janet Mills did sign a bill to provide funding for more public defender offices and employees in Maine. 

Along with the sheer number of people who don’t have a lawyer, the ACLU report also found that of the 633 Mainers who have not been provided effective counsel, 144 were incarcerated as of early May. Those individuals — who often can’t afford bail — have been imprisoned despite being legally innocent, as they have only been accused of a crime and not convicted of one. 

“Being incarcerated, even for a short time, is detrimental to a person’s wellbeing,” Garvan said. “Even under the best of circumstances, people in jails have limited or no access to necessary services such as medical care, mental health care, and substance use disorder treatment. These consequences can be made even worse when people do not have access to effective assistance of counsel.”  

The ACLU study also noted that a rising number of people have been waiting for a lawyer for a long time. As of May 8, the group found that 551 people had been waiting 10 days or more for an attorney, 466 people had been waiting 20 or more days and 373 people had been waiting 30 or more days. 

Such delays are unacceptable and can create situations in which crucial evidence is lost, the ACLU argued. Furthermore, lacking a lawyer can make it more difficult for people to get out of jail before trial, and being incarcerated for long periods can lead to a loss of employment or family connections, among other issues.  

Lawmakers have also expressed concern about delays within the criminal legal system — specifically when it comes to trials. This session, Rep. Matt Moonen (D-Portland) put forward a bill to define what constitutes a speedy trial in an effort to address that issue. But while the measure passed initial votes in the Legislature, it did not receive funding from the budget committee before lawmakers adjourned and will not be enacted as a result. 

Although there are issues with access to legal services across the state, the ACLU found the problem is particularly worrisome in specific areas such as Penobscot, Aroostook, Franklin and Knox counties. 

The group also noted that counties with higher prosecution rates tend to have higher rates of people without a lawyer. As a result, the ACLU called on prosecutors to make an effort to charge fewer people with low-level crimes as a way of reducing the burden on the state’s legal system.  

“Maine voters can hold prosecutors accountable by electing candidates whose values align with their own,” the group argued. “Maine voters can also influence and elect state lawmakers who are committed to funding public defense and ensuring Maine upholds the people’s constitutional right to effective assistance of counsel.” 

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