The Capital Judicial Center complex in Augusta includes the Kennebec County Superior Court. (Photo by Jim Neuger)
After a superior court judge found Maine guilty of failing to provide counsel to those who can’t afford it, the American Civil Liberties Union of Maine is arguing that people should be released from jail while they wait for their state-appointed attorney.
Earlier this month, the Kennebec County Superior Court ruled that Maine had violated people’s Sixth Amendment rights by failing to provide indigent legal representation. In a follow up hearing later this month, the same court will hear from the state and the ACLU, which brought the initial lawsuit, on how best to remedy the constitutional violation.
The ACLU’s proposed solutions include release from jail for those whose right to an attorney can’t be met, and a court mandate that the Maine Commission on Public Defense Services, which oversees public defenders, ensure they provide continuous representation starting at the defendant’s initial appearance and throughout the criminal process.
“We’re hoping that the court will craft a remedy that recognizes that people are innocent until proven guilty, and should not be locked up until the government can provide them with a lawyer,” said Zach Heiden, chief counsel for the ACLU of Maine.
The state’s response, including solutions, is due in a week.
The civil rights organization first sued the state over lack of indigent counsel in 2022. Since then, the lawsuit was granted class action status, and the number of people charged with a crime waiting for state-appointed attorneys has steadily increased from 106 in November 2023 to 930 this month.
According to a Maine Morning Star analysis, of those 930, at least 115 are currently being held in custody while they wait for state-appointed legal representation.
After the Jan. 3 ruling from the Kennebec County Superior Court, the ACLU filed a response last week asking the court to consider releasing non-convicted people from detention seven days after their initial appearance in court. After 45 days if no state-appointed attorney is provided, the ACLU asked the court to consider dismissing all charges, with the understanding that they could be filed again once an attorney is assigned.
While releasing people charged with a crime could be a public safety concern, Heiden said there are ways courts can put conditions on release.
“The government has not shown that the release of non-convicted indigent defendants would threaten community safety so drastically as to justify continuing to deny petitioners their constitutional rights,” the ACLU filing said.
“To the extent that public safety clashes with federal constitutional rights, the latter must prevail.”
Public defenders’ officers aren’t enough to meet growing needs
The state hired its first five public defenders in 2022, and in March 2023, Gov. Janet Mills signed a law adding two offices and 10 new public defender positions.
However, the addition of those offices “has made a real difference across the state, but it’s not enough to solve the problem,” Heiden said.
Meanwhile, people waiting for an attorney can’t negotiate bail, prepare for trial or get their day in court because of the ongoing shortage — a failing on Maine’s part to provide access to a public defender, according to the lawsuit.
The ACLU asked the court to require the Maine Commission on Public Defense Services to submit a written plan outlining how they intend to provide indigent defense services to everyone who needs them.
The state has until Jan. 20 to file a response, including potential solutions to address the shortage of public defenders, after which the superior court will consider both proposals in a three-day hearing in Augusta beginning Jan. 22.
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