In five months the number of adult criminal cases in Maine without attorneys has increased more than 700 percent.
Low-income people — in jail or out on bail — are stuck waiting for weeks or months for an attorney and court dates, which lawyers and the Maine ACLU have said violates their Sixth Amendment rights.
“What I have seen is a lot of people are languishing in jail,” lawyer Christopher Somma said. “I’ve seen a very exacerbated court and a very tired defense bar, and a tired prosecutorial bar as well.”
The Maine ACLU filed a lawsuit in 2022, alleging the state violates the constitutional rights to legal counsel and a speedy trial for indigent people. The lawsuit is still pending as two settlements were rejected by a judge. But there is not a clear path to fix the issue, said lawyers who represent low-income defendants. They say the state’s plan to add public defender offices may help but won’t solve the problem.
The Maine Commission on Indigent Legal Services provides attorneys to low-income people who cannot afford to hire one. There were around 756 adult criminal cases and roughly 537 people without attorneys as of March 22, a drastic increase from 74 cases on Oct. 18. Around 180 of those people are in custody.
The list of adult criminal cases without attorneys is distributed to lawyers a couple times a week.
“I have never seen that list go down,” lawyer Mitchel Roberge said. “It has only ever gone up.”
One woman without an attorney is in custody for the lowest level felony drug possession and a misdemeanor violation of conditions of release, according to the state’s list of cases. She had a court hearing March 11 and is not scheduled to go before a judge again until June 5.
Another person on the list waiting for an attorney had a court hearing Jan. 3 and isn’t scheduled to be in court again until May 20.
The list of lawyers who can and will take on cases is essentially empty, Somma said.
“Attorneys are just overloaded or are overwhelmed with cases,” Somma said. “I have to remind judges and remind everyone else I’m a human being. I’m not a machine.”
New rules regulating how many cases a lawyer can take went into effect in January, limiting the number they can take on.
Points are assigned based on the types of cases, and lawyers can only have so many points at a time. Somma said he isn’t currently on the list because, while he has the availability to take a few more cases, he would be assigned more cases than he could reasonably take on in just a couple of days.
Judges have requested he take on more cases, but Somma said he can’t as a solo practitioner without additional support and with his obligations to existing clients.
The point system contributes to the shortage but it isn’t the only issue, Roberge said.
Maine’s lawyers are aging and retiring, while fewer people are replacing them. Lawyers in private practice also aren’t taking on indigent defense cases. Those cases pay $150 an hour while those private practice in other types of law can charge $300 or more an hour, Roberge said.
“The question really for us is, ‘Why would somebody want to practice an indigent criminal defense unless you have a passion for it?’” Roberge said. “There’s really no reason that you would want to get involved in it. You’re making half of what you could charge otherwise.”
There is also a lack of prosecutors and spots within district attorneys offices that aren’t being filled because the pay is low and the workload is high, he said.
A quick fix to the rights violations that happen while people are in jail is using more personal recognizance bonds — a bond that allows people to leave jail without paying. Using GPS tracking ankle monitors would also help, but that’s done rarely across the state, Somma said.
The state’s first public defender’s office opened in November to help provide attorneys to low-income people, without solely relying on private practice lawyers to take cases. Gov. Janet Mills signed a bill Thursday that creates two new offices serving Aroostook, Penobscot and Piscataquis counties. The number of defenders in the state will increase from 15 to 25 with the additional funding.
A robust public defender system is still likely not enough to solve the problem, Somma said. He also practices in New Hampshire, which has a good public defender system but still doesn’t have enough lawyers.
Any long term fixes will take action from state lawmakers, Roberge said.
“I really think the Legislature is going to have to wake up and realize that this is something that needs action, like now,” Roberge said. “Something really, really significant has to be done now, that’s going to guarantee that people are immediately coming on board to take cases.”
Roberge said the only solution he sees is paying lawyers enough that it’s worth them taking the cases.