This testimony was given on Nov. 19, 2019, at a Maine Commission on Indigent Legal Services hearing in response to a 6th Amendment Center report on the state of indigent defense in Maine. 

Chair Tardy, and Commissioners, good morning. My name is Alison Beyea, I am the Executive Director of the American Civil Liberties Union of Maine, and I appreciated the opportunity to speak with you today. I want to begin by thanking you all for agreeing to serve on this Commission, and for holding this public hearing. The Sixth Amendment Center issued its report on the right to counsel in April of this year, so when you all agreed to serve on this Commission, you knew what you were getting yourselves into. You knew how many significant problems there are with Maine’s indigent defense system, and you knew how challenging it was going to be to fix them. And, you agreed to serve anyway. I am very grateful to you for that, and all of us here today who care about the right to counsel should all be very grateful.

The Sixth Amendment Center’s report makes it clear that Maine is not meeting its constitutional obligation to provide counsel to people who are accused of crimes and who cannot afford an attorney. It found that the attorney qualification standards are too lenient, that training is inadequate, and that oversight is practically nonexistent. In no other area of government would we think it appropriate to outsource a critical public function to private contractors with no supervision or accountability. Yet for the constitutionally-required government function of ensuring fair trials for people at risk of losing liberty or property, we are doing just that.

The Sixth Amendment to the United States Constitution, and Article I Section 6-A of the Maine Constitution, guarantee that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for their defense. There are three key words in that provision that merit special attention. First, the word “right”—this is not optional. The state does not have a choice about whether or not to comply. Second, the word “counsel”—the Constitution guarantees a lawyer at all critical stages of the prosecution, and one who is assigned to the case and not simply the “lawyer of the day.” And third, and perhaps most critical for your work here today, the word “assistance.” In the words of the Sixth Amendment Center report, the Constitution requires more than simply “a warm body in a suit” standing next to the accused—the accused has the right to a lawyer who can and does provide assistance.

In United States v. Cronic, the Supreme Court held that the right to the assistance of counsel means the right to the effective assistance of counsel. Fundamentally, that means ensuring that only qualified attorneys are permitted to represent defendants, that those attorneys are well trained, and that they are supervised. No other state in the country relies entirely on private attorneys to fulfill this important public role, and for good reason: it is much more challenging to supervise private attorneys spread throughout the state as compared to public defenders housed in a few well-resourced offices.

Many lawyers in Maine who serve as appointed counsel do in fact provide excellent assistance. Some of them are here today. But, too many do not. And what’s worse—the state has no mechanism in place for sorting the good from the bad, or for giving remedial training to the lawyers who are underqualified to do their job.

Last Spring, the ACLU of Maine represented a woman who was due to report to jail for a 40-day sentence for shoplifting 40 dollars from the change return at a Wal-Mart self-checkout. Brenda Smith was going to lose access to medication-assisted treatment when she entered jail, and we challenged that denial in federal court. Brenda had been in active recovery for over ten years, but this 40-day jail sentence with the loss of her medication could have meant the loss of all that she had worked for, and might even have threatened her life. The result of our case was that the courts ordered the jail to provide Brenda her medication. But beyond that, the district attorney agreed to convert her 40-day jail sentence into a $100 fine.

Think of how much time and money and effort could have been saved if Brenda’s court-appointed attorney had been able to make the same arguments we made in her criminal case. The attorney that MCILS entrusted to safeguard Brenda’s rights in her criminal case had previously been suspended from the practice of law for failure to provide competent representation. He had twice been publicly reprimanded by the Board of Bar Overseers for conduct unworthy of an attorney. In other words, this Commission continued to hire a lawyer who had been sanctioned by the bar overseers three times, including a suspension. We represented another prisoner in a similar case in the fall of 2018, and his MCILS-appointed lawyer had previously been suspended and sanctioned by the bar overseers as well. What does that say about our commitment to the Constitution?

Maine is not going to be able to meet its constitutional obligation with its current staffing, its current reimbursement rate, or its current delivery model. At the state level, it is necessary to hire training staff who can provide meaningful training, auditors who can conduct oversight, and lawyers who can provide support to private lawyers who are handling difficult or unfamiliar issues. And in many communities, the state needs to establish public defender offices that have resources that are congruent to those of the district attorney’s office: paralegals, investigators, and supervisors.

Building a successful indigent defense system will require many things: it will require you to convince the public that this is a problem worth caring about. It will require you to convince the legislature and the governor that this a problem that cannot be solved without a significant increase in funding. It will require energy, and ideas, and vision. What we hope it will not require is litigation.

In New York, Montana, Michigan, Washington, Pennsylvania, Idaho, Missouri, Nevada, Indiana, California, and Utah, the ACLU had no choice but to take the state to court in order to force it to comply with the Sixth Amendment. But we do have a choice here. Long, protracted class-action litigation, and long protracted court-ordered consent decrees, are time-consuming and expensive. At the end of seven years of indigent defense reform litigation in New York, the state wrote a check to the ACLU for $5.5 million in attorney fees. That is money that would be far better spent on improvements to the system.

There are people from across the state gathered here in this room ready to help in any way they can, including my colleagues at the ACLU of Maine. This is a problem that we can all solve together.