Maine must release people from jail, drop charges if no lawyer available, justice rules

By Marie Weidmayer, Bangor Daily News Staff

People who have been charged with crimes must be released from jail after 14 days if the state of Maine fails to provide a lawyer within that time, according to a new court order issued March 7.

Maine has not provided lawyers to indigent defendants, people who cannot afford lawyers, “in violation of the Sixth Amendment to the United States Constitution,” Kennebec County Superior Justice Michaela Murphy wrote in the order.

Hundreds of Mainers are waiting for lawyers in criminal issues, causing them “irreparable harm,” Murphy continued. The new order will allow those people who have waited weeks or months to be released from jail. 

The order comes more than two years after the American Civil Liberties Union of Maine filed a lawsuit against the state of Maine and just over a month since the end of a three-day trial. Maine had more than 1,150 indigent defense cases pending without a court-appointed lawyer at the end of 2024, which includes child protective cases as well as adult and juvenile criminal cases. 

There is significant public interest in a “fair, functional, and stable criminal justice system,” Murphy wrote. People have a presumption of innocence when they are charged with a crime and this should help protect against the power of the state.

“Each of them is still presumed to be innocent under the Maine and United States Constitutions,” the court order said of those charged with crimes. “And yet many of them remain in custody, without counsel.”

The Maine Commission on Public Defense Services has until April 3 to present a plan to the court about how it will provide lawyers to people charged with a crime. After that, people across the state who have been incarcerated for more than 14 days after their first appearance will be released, according to the order.

There will be conditions of release imposed on anyone who leaves jail under this provision, which is standard when someone is granted bail. People who are on bail and waiting for a lawyer are still deprived of their personal liberties, including conditions of where they can go and who they can interact with, the order said.

Charges must be dismissed for people who have been incarcerated for more than 60 days without a lawyer, the order said. The charges can be refiled once the commission is able to provide a lawyer.

There are 51 cases where people have waited more than a year for a lawyer, the order said.

“Access to justice should not depend on how much money a person has,” ACLU of Maine Chief Counsel Zach Heiden said. “If you can’t afford an attorney, the state is required to provide one for you. This order brings us closer to making that promise a reality for the people of Maine.”

Gov. Janet Mills did not immediately respond to a request for comment.

If the commission doesn’t comply, dozens of “serious domestic violence offenders and serious drug traffickers” will be released from jail, Penobscot County District Attorney R. Chris Almy said.

“What incentive does [the commission] have to comply when it is the very people that they are designated to represent who will benefit by non-compliance?” Almy said. “That is a question left unanswered. How will this affect public safety?”

The commission argued the system is “‘good enough’ — that the hundreds of Plaintiffs should wait patiently in jails or in the community while on bail until a lawyer is finally provided who might then file motions to dismiss their cases at some undetermined point in time,” the order said.

The order outlines some potential routes to help find lawyers to take on cases, but it does not tell the commission how it must change its practices. The commission must decide what changes it will make so people’s constitutional rights are not violated, the order said.

“The Court cannot and does not expect miracles,” Murphy said. “But it is clear that the [commission and state] have not been prioritizing finding or providing counsel for the incarcerated [people].”

The state and county sheriffs have until April 7 to file a response to the order. There are roughly 100 people in the county jails waiting for lawyers.

The first public defender office opened in Augusta in late 2023 and there is a mobile rural defender unit. There are public defender offices in Penobscot and Aroostook counties. 

Under the current proposed budget, the commission will not receive the additional money it asked for to create more public defender offices, the order said. The commission will also run out of money to pay private lawyers within the next year or so.

“Those are problems no court in Maine has any authority to remedy,” Murphy said.