Maine’s Unconstitutional Defense for Indigent Defendants
Among the 50 states, Maine remains unique because it lacks a public defense system. After Gideon v. Wainwright (1963), states began to develop public defense systems, composed of government-employed lawyers, to provide legal representation for indigent defendants: defendants who cannot afford counsel. As opposed to replicating the system present in the other 49 states, Maine relies entirely on private attorneys to defend clients who cannot afford their own defense. In 2009, the state created the Maine Commission on Indigent Legal Services to protect the rights of indigent clients and ensure that the state meets its obligation to provide each defendant, no matter their socioeconomic status, with an attorney. In theory, Maine complies with the sixth amendment, which states that “in all criminal prosecutions, the accused shall enjoy the right to… have the assistance of counsel for his defense” because, despite using private attorneys, the state still ensures that each defendant receives legal representation.1 The current system, however, forces defendants to wait for an extensive period of time before trial. The long waiting period results from a lack of private attorneys, little government assistance, low wages, and an excess of cases. As a result, Maine currently violates the clause in the Sixth Amendment that guarantees U.S. citizens “the right to a speedy and public trial.”2 Furthermore, Maine hires inadequate attorneys with criminal backgrounds that may not provide satisfactory assistance to the defendant. While Maine’s current practice of employing private attorneys to represent indigent defendants satisfies the sixth amendment’s right to counsel in theory, the reality denies defendants “the right to a speedy and public trial” protected by the Sixth Amendment.3
In theory, the structure of Maine’s legal defense system for indigent defendants, implemented after the landmark Supreme Court case Gideon v. Wainwright (1963), is constitutional despite its unique character. Gideon v. Wainwright (1963) resulted when the state of Florida denied Clarence Gideon legal counsel. He chose to defend himself, failed, and was sent to prison.4 In 1963, the Supreme Court heard the case and sided with Gideon, holding that all state courts must provide criminal defendants with counsel, no matter the severity of the case.5 The Court employed the 14th Amendment and the process of selective incorporation to apply the 6th amendment to state courts.6 Following the decision, states across the country began to establish public defense systems for indigent defendants.7 However, Maine decided to employ private attorneys to represent indigent defendants rather than create a public defense system. As a creator and former head of the Maine Commission on Indigent Legal Services, John Pelletier championed the system of hiring of private attorneys to defend indigent defendants claiming that “anyone too poor to hire an attorney could have the exact lawyer hired by someone who could afford to pay.”8 On this level, Petellier is correct. Maine’s private defense system does allow for indigent clients to receive the same counsel as those who can afford their own. Privatization, though, is not the problem. The sixth amendment requires counsel for defendants; it does not specify the need for a public defender to fill that role. Rather, the problem lies in that the current system denies defendants “a speedy trial,” a right guaranteed by the Sixth Amendment.9
Maine’s current system denies defendants a “speedy trial” as little government assistance, low wages, and excess work results in the departure of private attorneys from defending indigent clients and consequently increases the workload for the remaining attorneys. Private attorneys receive neither the government benefits nor the guaranteed salaries that prosecutors receive in district attorneys’ offices. Consequently, “young lawyers… now gravitate toward jobs at district attorneys’ offices” because, as government entities, the offices provide a guaranteed salary and benefits to their employees.10 Even the recent salary increase in hourly wages for private attorneys from $60 to $80 does not meet their “overhead,” which the government supplies for employees in the district attorneys’ offices.11 Therefore, the amount of private attorneys willing to defend indigent defendants decreased. As a result of the shortage, there remains “unrealistically high caseloads for remaining court-appointed counsel.”12 With understaffed offices, the remaining private attorneys are overworked and underpaid. These working conditions conduce less productivity and subsequently create a backlog in cases that deny indigent clients their rights granted by the sixth amendment.
Maine’s current system forces defendants to wait for considerable lengths of time in jail, consequently denying the constitutional demand for “a speedy trial.”13 As of March 16, 2022, the Chief Justice of Maine admitted “the number of pending court cases in Maine has increased 45% compared to pre-pandemic levels” and explained that Maine “has yet to cut the backlog in any meaningful way.”14 While waiting for unnecessary lengths of time in jail, some defendants cannot even acquire basic services. For example, “one client…could not get treatment for months for a yeast infection.”15 The defendant was denied medical treatment for a trial that could lead to their acquittal. Furthermore, some “defendants… often spend more time behind bars than their eventual sentences require.”16 Not only do they suffer health complications, but the slow execution of trials means that defendants proven not guilty could serve more jail time than a guilty defendant serves in their sentence. The long wait times, as in other states, directly violate the rights of defendants granted by the sixth amendment of the U.S. Constitution; almost two years after the commencement of the Covid-19 pandemic, “district attorneys face some of the longest case backlogs in living memory… nationwide, from tiny towns to the largest cities.”17 Yet, the shrinking workforce and Maine’s inability to “cut the backlog in any meaningful way” increases the problem.18
To replace departing attorneys and reduce defendants’ wait times, the Maine Commission on Indigent Legal Services “repeatedly hired attorneys and staff members with criminal backgrounds to represent the state’s poorest defendants.”19 This program hired employees convicted of possesing child pornography and felony theft.20 While Pelletier praised the idea of hiring private attorneys, to whom one normally pays hefty fees for excellent service, his commission hired private attorneys with criminal backgrounds. Attorneys with criminal pasts may fail to provide indigent defendants with the adequate “assistance of counsel” granted to them by the sixth amendment. For example, attorney Suzzane Dwyer-Jones was arrested four times in 14 months for driving under the influence and a judge deemed her “mental health… a ‘substantial threat of irreparable harm to the public.’”21 Her later hiring by the Commission on Indigent Legal Services proved troublesome as she “skipped court hearings and sent bizarre, confusing texts to excuse her absence.”22 Additionally, the employee previously “convicted of felony theft now reviews defendants’ finances to determine whether they will receive a state-funded attorney,” highlighting the Commission on Indigent Legal Services’ poor hiring choices.23 These inadequate attorneys combined with the low wages and high caseloads for the remaining private attorneys created a system that fails to guarantee defendants “a speedy trial” and “the assistance of counsel for his defense.”24 The failures present in Maine’s current system have not gone unnoticed. On March 1, 2022 the American Civil Liberties Union of Maine filed a class action lawsuit against the Commission on Indigent Legal Services.25 The ACLU cited the “Commission on Indigent Legal Services fail[ure] to set and enforce standards for attorneys… [and to provide] adequate funding and training for participating attorneys” as the basis for the lawsuit.26 Notably, the ACLU does not cite the privatization of the public defense system as a problem in their lawsuit, but rather the management of the Commission and its outcomes.
Despite Maine’s current violations of the Sixth Amendment, some people rightfully worry that Maine lacks the funding to establish a public defense office. Even though Maine’s “lawmakers unanimously supported opening the state’s first public defender office by January 2022,” some people exhibit concerns regarding funding.27 For example, Republican Sen. Lisa Keim worries about the future of funding a public defense office if Maine uses “one-time funds,” a possible solution to the problem.28 Despite the unanimous acknowledgment of the problem, worries about future funding hinders the creation of a public defense office. Moreover, Maine maintained less difficulty in “retain[ing] private attorneys… in the last year.”29 The Commission’s ability to “retain” more private attorneys in the past year indicates a step in the right direction. Nonetheless, these attorneys still suffer the aforementioned work conditions and indigent defendants still wait a long time before their trial, evident in the unmovable backlog as of March 2022. Therefore, Maine must solve their constitutional crisis through reform.
The concerns about funding a public defense office, while negligible in comparison to the overwhelming evidence that the current practices are unconstitutional, are valid and suggest that the most viable solution may be through reform. Although the Commission currently retains more private attorneys, an increase in wages or government benefits would entice more private attorneys to represent indigent defendants. This change would relieve overworked private attorneys and reduce the backlog, providing defendants with a speedier trial. The possibility of solving the current problems with better management further corroborates that the problem is not privatization, but rather its management. Therefore, Maine can solve the problem without the establishment of a public defense system, which appears difficult to create despite unanimous support. The Commission must improve its management with an increase in wages, government assistance, lower work hours, and improved oversight both in the hiring process and once attorneys have been hired. These measures will increase the amount, productivity, and quality of private attorneys for indigent defendants. This solution would grant indigent defendants “the right to a speedy and public trial” and “the assistance of counsel for [their] defense,” ending Maine’s current unconstitutional actions.
References
1 U.S. Constitution, amend. 6.
https://www.law.cornell.edu/constitution/index.html.
2 Ibid.
3 Ibid.
4 “Gideon v. Wainwright.” Oyez, Accessed February 28, 2022.
https://www.oyez.org/cases/1962/155.
5 Ibid.
6 Ibid.
7 Samantha Hogan, “With no public defender system, Maine’s poor are often represented by private attorneys with criminal backgrounds,” Bangor Daily News, October 7, 2020.
8 Ibid.
9 U.S. Constitution, amend. 6.
10 Hogan, “With no public defender system.”
11 Susan Cover, “Calls continue for public defense system in Maine,” Spectrum News, January 27, 2022.
https://spectrumlocalnews.com/me/maine/news/2022/01/27/calls-continue-for-public-defense-system-.
12 Samantha Hogan, “A year later, Maine still last state without public defenders,” Penobscot Bay Pilot, January 9, 2022.
13 U.S. Constitution, amend. 6.
14 Associated Press, “Chief Justice delivers bleak assessment of trial backlog,” Spectrum News, March 16, 2022.
15 Christopher Williams, “Defense lawyers warn of crisis with poorly paying court-appointed cases,” Sun Journal, December 9, 2021.
16 Ibid.
17 Griff Witte and Mark Berman, “Long after the courts shut down for covid, the pain of delayed justice lingers,” The Washington Post, December 19, 2021.
18 Associated Press, “Chief Justice.”
19 Hogan, “With no public defender system.”
20 Ibid.
21 Ibid.
22 Ibid.
23 Ibid.
24 U.S. Constitution, amend. 6.
25 David Sharp, “ACLU Sues Over Inequities in Maine’s Public Defender System,” U.S. News & World Report, March 1, 2022.
26 Ibid.
27 Hogan, “A year later.”
28 Cover, “Calls Continue.”
29 Ibid.