The main courtroom of the old Kennebec County Courthouse, now part of the Capital Judicial Center in Augusta. (Jim Neuger/ Maine Morning Star)
As hundreds of people, both in and out of jail, wait for legal representation, the American Civil Liberties Union of Maine was given the green light to sue the state government for chronically failing to provide access to public defenders for people who can’t afford an attorney.
Throughout the yearslong legal battle, ACLU of Maine has attempted to hold the state accountable for its lack of indigent legal services, which are government-funded services that guarantee a right to representation to people charged with a crime who can’t afford their own attorneys.
The state is one of the defendants named in the lawsuit, which also includes Attorney General Aaron Frey and a statewide commission responsible for expanding access to public defenders. In a Kennebec County Superior Court decision this week, Justice Michaela Murphy denied the state’s motion to dismiss.
“This decision from the Superior Court affirms that … this kind of a crisis requires action from all branches of government, not just one commission or one elected official or one agency,” said Carol Garvan, ACLU of Maine’s legal director.
“What the state needs to do is provide a fair criminal justice system, and a fundamental part of that is that people are provided counsel.”
The right to indigent legal services is a constitutional right as codified in the Sixth Amendment.
Maine has shirked this responsibility for years, according to Garvan. As of July, 643 people have been denied their right to counsel after being charged with a crime, according to an ACLU of Maine report. Almost 170 of them were incarcerated with no legal representation, and 413 had been denied an attorney for at least 30 days.
This number has increased fivefold since November 2023, exacerbating what Maine’s chief justice has called a “ constitutional crisis .”
The Attorney General’s Office declined to comment since this litigation is pending.
Adding public defenders offices
Maine predominantly contracts with private attorneys who offer free representation to people who can’t afford legal services, Garvan said. The state hired its first five defenders in 2022. In March 2023, Gov. Janet Mills signed a law adding two offices and 10 new public defender positions.
However, the two dozen public defenders Maine now has is far from enough, Garvan said.
“We think that’s a really good development, but it’s still not nearly enough, and so we still, as a state, are still relying for the vast majority of cases on private attorneys,” she said.
“And they’re not exclusively doing these kinds of cases, so it really depends very much on how many of those people are willing to take cases and how many of them are able to take cases.”
The bigger issue, she said, is the state prosecuting many more people than it can ensure counsel for.
Meanwhile, people waiting for an attorney are “stuck,” Garvan said. Whether they’re in or out of jail, they can’t move ahead with bail negotiations, 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.
Other state agencies will not be named defendants
In June 2024, Frey, the Maine Commission on Public Defense Services, and the State of Maine asked that the court dismiss the case against them. Earlier this week, a superior court in Maine dismissed the case against the attorney general and the commission, but the State remains a defendant, according to the opinion written by Murphy.
The State of Maine appealed based on sovereign immunity, which is a doctrine that shields governments from lawsuits or prosecution. The court denied this appeal.
“On one hand, it is the well recognized principle that the state as a sovereign is entitled to immunity from suit,” Murphy wrote. “On the other hand is the interest of Maine citizens to seek redress for alleged violations of constitutionally imposed obligations.”
As the case moves forward, the ACLU has a September deadline to submit findings from discovery, wherein the organization asks for relevant information from the defendants, Garvan said.
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