Indigent Defense Legislation Scaled Back as Deadline Approaches for Maine Jails to Release Criminal Defendants If a Lawyer is Not Available

The Maine Judiciary Committee released updated language Monday morning for a bill aimed at addressing the lack of state-provided attorneys for criminal defendants ahead of this week’s work session.

Originally introduced earlier this month by Sen. Anne Carney (D-Cumberland) and Rep. Amy D. Kuhn (D-Falmouth), this legislation look to make notable changes to the process for ensuring that those who cannot afford an attorney are provided one.

The updated language shared by Sen. Carney and Rep. Kuhn in their role as Judiciary Committee Chairs significantly pairs back this bill, striking out several pages of text and reducing it primarily to an emergency funding measure that creates five new Assistant Defender I positions, two paralegal positions, and one Legal Administrator.

These new hires would together cost the state an estimated $1.2 million annually.

While the initial draft of this bill also sought to create seven new positions within the state government, it instead looked to establish five Public Service Manager III positions alongside two paralegals and one Office Specialist Supervisor II. This would have cost the state around $1 million each year.

As explained in the official summary of the Chairs’ amendments, those hired for the role of Assistant Defender I will be supported by a Legal Administrator who will have the ability to provide both administrative support and coordinate the assignment of counsel as needed.

Struck entirely from the updated draft is language that would allow for the court appointment of a private attorney to represent someone eligible for indigent legal services in a case pending before the District Court, Superior Court, or Supreme Judicial Court under certain circumstances.

More specifically, this would apply when a public defender, assigned counsel, contract counsel, or employed counsel is not available to represent the individual and the private attorney is qualified and willing to undertake the needed representation.

These attorneys would be compensated in a manner equivalent to the reimbursement provided to assigned counsel.

This program in its entirely would automatically be repealed on July 1, 2027.

A public hearing for this bill was held earlier this month where Senate Minority Leader Trey Stewart (R-Aroostook) testified in support of this legislation in full, pointing out that “the failure to provide counsel at all stages of the criminal process has resulted in irreparable harm to indigent defendants.”

“This is not only a Constitutional issue, but one with the potential to have impacts on public safety,” Sen. Stewart argued. “As part of the ruling, the state must dismiss charges — without prejudice — against individuals denied counsel for more than 60 days after their initial appearance or arraignment.”

Here, Stewart references a recent order from Kennebec County Superior Court Justice Michaela Murphy that if a lawyer is not provided within 14 days, defendants must be released from jail.

The order also states that charges must be dropped for those who have been incarcerated for more than 60 days without receiving legal representation.

[RELATED: Maine to Release Criminal Defendants from Jail, Drop Charges If Lawyer is Not Available]

A representative of the Maine Prisoner Advocacy Coalition also testified in support of this legislation, underscoring concerns that many who have been charged with crimes in the state have not been able to access legal counsel in a timely manner.

The Maine Association of Criminal Defense Attorneys, on the other hand, testified in opposition to this legislation, contending that it would “undermine the purpose of the Commission on Public Defense Services and erode the right of the accused to the constitutionally mandated effective assistance of counsel.”

“The solution to this state-created crisis cannot be — it must not be — go back to the way things were before the Commission was created in 2009, to where judges would appoint whomever they determined fit to represent the accused — with no qualifications or standards in place, no oversight, no supervision, no mandatory training, no limit whatsoever on the number of cases one can take on, no expertise required,” they said.

Also testifying against this bill, in part, was the Maine State Bar Association. While the organization expressed support for the increased staffing, they argued in opposition to the proposal for assigning representation to defendants who cannot afford an attorney.

“We believe more bench assignments will lead to a less efficient and effective assignment system that conflicts with the predominant system of assignments through the Maine Commission on Public Defense Services,” they said.

The amendments offered by the bill’s sponsors in their role as Chairs of the Judiciary Committee would strip the bill of this temporary program, focusing only on the increased staffing aspect.

This version also retains the emergency preamble, meaning that if it must ultimately be supported by at least two-thirds of both the House and Senate.

The proposed changes are set to be discussed by Committee members at the work session scheduled for this Wednesday at noon.

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There are 51 cases in Maine where people have waited more than a year for a lawyer, and around 100 people are currently waiting in county jails to be assigned legal representation as of this month.

At the end of 2024, more than 1,150 cases were pending without a court-appointed attorney, including adult and juvenile criminal cases, as well as child protective cases.

About a year ago, Gov. Janet Mills (D) signed a bipartisan bill — approved unanimously by state lawmakers — into law that created two new public defender offices serving Aroostook, Penobscot, and Piscataquis counties and added ten new public defense attorneys.

This legislation increased the total number of public defenders statewide from 15 to 25.

The biennial budget proposed by Gov. Mills does not currently contain any extra funding for additional public defender offices as had been requested, and it is reportedly projected that the Maine Commission on Public Defense Services will run out of money for private lawyers — the primary way that defense is provided to those in Maine who cannot afford it — within the next year or so.

Under the order issued by Justice Murphy earlier this year, the Commission has until April 3 to to tell the court how it plans to provide timely legal representation to indigent defendants. At that point, anyone who has been incarcerated for more than 14 days since their first court appearance will be released.