A Growing Crisis: The Right to Counsel Denied in Maine

Maine is failing to provide legal representation to hundreds of people facing criminal charges who cannot afford their own attorney. This violates their Sixth Amendment right to counsel, undermines the presumption of innocence, and upends lives.

We sued the state in 2022 for failing to provide effective assistance of counsel to people charged with a crime in Maine. As that case continues to work its way through the courts, the situation has only gotten worse. Maine is now facing a constitutional crisis.

When the state chooses to charge a person with a crime, it is the state's responsibility to provide adequate legal counsel to those who cannot afford an attorney – because a person's freedom should never depend on their wealth.

658 people were denied the right to an attorney as of May 28, 2024, a 521% increase from November 1, 2023.1 Of those 658, 156 were incarcerated in Maine’s jails and prisons, at a time when they were presumed innocent.2

Charging people with a crime and then denying their right to counsel undermines the fundamental principle that all people are innocent until proven guilty.

The people who have been denied counsel are legally innocent, yet many are incarcerated before trial simply because they cannot afford bail. It is always wrong to incarcerate legally innocent people, particularly when they are denied their right to counsel.

People often cannot navigate the complicated criminal legal system without an attorney. This can leave people helpless when they might otherwise have an attorney advocating for lower bail, conditions for release, and preparing their defense.

Failing to provide an attorney in a timely manner can have disastrous consequences. The days immediately after an arrest can be the most critical for developing a defense. Delays can result in the permanent loss of evidence, such as eyewitness accounts, security videos, forensic evaluations, and crime scene documentation. 

The effects are even more far-reaching for people who are denied counsel and incarcerated only because they cannot afford bail. Being incarcerated, even for a short time, is detrimental to a person’s wellbeing. Even under the best of circumstances, people in jails have limited or no access to necessary services such as medical care, mental health care, and substance use disorder treatment. Incarceration can also cause people to lose their jobs and lose contact with their families. These dire consequences can be made even worse when people do not have access to effective assistance of counsel. Being denied the right to an attorney while a person is incarcerated exacerbates the social isolation commonly experienced by incarcerated people, as well as feelings of frustration and confusion about what is going to happen in their case – and to them. 

The effects of this crisis are not felt equally throughout the state.4 Some counties make up a small percentage of the state's population, but a significant percentage of the people who have been denied their right to an attorney. 

For instance, over the past six months Penobscot and Aroostook Counties consistently reported a disproportionate number of unrepresented cases per capita. As of May 28, 2024, Penobscot County accounts for just 11% of the state’s population,5 yet 37% of the unrepresented cases.6  

Aroostook and Penobscot have the highest prosecution rates: 4.1 new criminal cases are brought per 100 people in Aroostook, and 3.6 new cases are brought in Penobscot. These counties are prosecuting people at rates 1.9 and 1.6 times higher than Cumberland County, which has a rate of 2.2 new criminal cases per 100 people.8



Prosecutors have a role to play in fixing this constitutional crisis.

Prosecutors decide whether to charge a person with a crime and which charges to bring. This power can be used to fill prisons and jails. For example, prosecutors choose to file excessive charges against people for drug possession when those same people really need access to community-based treatment – not criminal punishment. This is one of many factors that has made the United States the world’s largest jailer, both in absolute numbers and by the percentage of people we imprison.

But prosecutors also have the discretion to address mass incarceration, and they must use it — particularly at a time when Maine's criminal legal system is violating people's constitutional rights on a mass scale. Choosing to prosecute fewer people for allegedly committing low-level crimes would reduce the burden on Maine’s legal system. Choosing not to require bail would remove one barrier to liberty for people with limited resources.

Charging a person with a crime is a choice, and decades of failed policies have proven that criminalizing people for certain behaviors will not change those behaviors.

As elected officials, prosecutors are accountable to the people they represent. There are eight district attorneys representing Maine’s eight prosecutorial districts. Maine voters can hold prosecutors accountable by electing candidates whose values align with their own. Maine voters can also influence and elect state lawmakers who are committed to funding public defense and ensuring Maine upholds the people's constitutional right to effective assistance of counsel. 

The current system is failing people with limited resources in all Maine counties, tipping the scales of justice against the people. A person's freedom should never depend on their wealth.

Read more about our lawsuit against the state, Robbins v. MCILS.

Last updated with data from May 28, 2024.

  1. The Administrative Office of the Courts, through its clerks, regularly compiles data on criminal cases currently without counsel to share with the Maine Commission on Indigent Legal Services and other interested parties. View the source data from the state here.
  2. If a person was listed as in custody for any one of their pending cases, that person was assumed to be in custody. Additionally, "PV Hold" and "MCC" entries in the "In Custody?" column were taken to signify that the person was in custody. If a person was listed as out of custody for each of their pending cases, that person was assumed to be out of custody. In some cases, there was no data available on whether the individual was in custody or out of custody, and therefore the "out of custody total" and "in custody total" do not always sum to the overall total.
  3. The number of days an individual has been waiting for counsel was calculated by counting the number of days between the “last court date” provided by the courts and the date the list was sent. In instances in which no last court date was provided, or in which the last court date provided was plainly incorrect, best efforts were made to enter an accurate date -- including the use of the first date that person appeared on the list of unrepresented defendants, the last court date entered for the same individual on another week's spreadsheet, or the "date added" entry. 
  4. The docket number was used to determine the number of cases by county. For docket numbers lacking the abbreviation that corresponds to the appropriate superior court, the clerk’s email address was used to deduce the county in which the case was filed. For the limited number of cases pending before a district court, those cases were allotted to the county that district court serves.
  5. The 2023 population of each Maine county was determined using the Maine Judicial Branch 2023 Annual Report here.
  6. Data provided by the Maine Judicial Branch here.
  7. The "disparity index" was calculated by dividing a county's percentage of the state's total number of unrepresented cases by that county's percentage of the state's total population.
  8. Prosecution rates were determined by dividing a county's number of new criminal cases in FY2023 by that county's population. Case numbers were pulled from the Maine Judicial Branch's caseload statistics. Cases considered were limited to those under the "criminal total" within each county's unified criminal docket. Civil violations within the unified criminal docket were excluded because defendants do not have a right to an attorney in those cases. See the caseload statistics for each prosecutorial region here.