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Crisis Of Defense For Poor Grows - Lawyerless Clients Up, Rosters Fall

Cumberland County Court in Portland

The number of unrepresented poor criminal defendants in Maine has passed 200 while the number of available defense attorneys taking cases has fallen again, and plummeted from its peak.

This is all while the number of criminal prosecutions in Maine has sky-rocketed.

Court officials regularly send out a spreadsheet to defense attorneys listing clients across the state who do not have an attorney, but a judge has said they are constitutionally entitled to one. This right to an attorney is enshrined in the United States Constitution and a famous case, Gideon v. Wainwright, from the 1960s. The sheet is a way of asking defense attorneys to take cases for which they are eligible.

The latest spreadsheet sent out on January 3, 2024, shows approximately 213 people with 250 or so cases that are facing a criminal prosecution but do not have a named lawyer to represent them. Just less than 50 of those are in a jail or otherwise in custody. Even Cumberland County's court in Portland, where there are the most attorneys in the state, there are about 30 unrepresented defendants. There are nearly 70 such defendants in York County, the same number for rural Aroostook County, which has historically struggled to find attorneys for any type of legal matter, with criminal cases no exception. In other words, this crisis has hit every county to some degree.

The Maine Commission for Indigent Legal Services (MCILS) has secured better pay for defense attorneys, now at $150 an hour to match the same pay (including benefits and office costs) for prosecutors. This was historically $60 an hour for years, and over time attorneys stopped taking court-appointed cases. Turning that ship around is proving to be incredibly difficult.

The state is now in its fifth year of fewer defense attorneys willing to take criminal defense cases when appointed by a court.

Maine has a very small number of salaried public defenders. The vast majority of defendants given a court-appointed lawyer are handled by private attorneys. That is also the case in other states with strong public defender organizations, such as Massachusetts. The difference now is that Maine has only just started setting up public defender offices.

Fall in rostered attorneys continues

The latest figures from MCILS has shown that the fall in defense attorneys taking indigent defendants has continued to decline, but the fall has slowed (see graph). At the 2018 peak, there were 421 defense attorneys on the roster. Now it is down to 295, or 70% of what it was. That was slightly down on 2023 but almost flat.

As the graph also shows, the number of open cases in Maine's courts has exploded, with delays caused by the pandemic making the situation even worse. However, even before the pandemic, the rise in prosecutions was growing sharply.

Latest figures show that there are 37% more misdemeanors and 63% more felonies comparing the numbers from December 2019 to December 2023. Penobscot, Franklin, Hancock, Oxford, Sagadahoc, and Waldo counties have either more than or nearly doubled the number of unresolved felony cases in that time.

However, getting deeper into figures released by MCILS for a meeting next week shows other worrying trends. While the amount paid for each case has risen, not surprising given the increase in the hourly rate, the number of hours spent on each case has fallen to the lowest it has ever been for every month of this financial year when compared to the same months in the previous three years. That effectively means less time being spend on each case.


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