Legislature must act on prosecutor shortage

By Chelsea Lynds, Penobscot, Piscataquis County deputy district attorney

During the last five years, court backlogs have pressured Maine prosecutors to shortcut their obligation to enhance public safety. COVID-19 forced district attorney’s offices to quickly create remote processes. We absorbed the impact of the indigent defense counsel crisis.

In the wake of those events, our ability to resolve cases in a timely manner has diminished. Police are submitting roughly the same number of cases for prosecution, but the courts are unable to process these matters timely in part due to a lack of defense counsel willing or able to represent defendants who can’t afford a lawyer. This has congested the courts and caused prosecutor caseloads to increase. 

To address the indigent defense crisis, the Maine Legislature nearly doubled the pay of private attorneys taking on indigent cases to $150 per hour and the Legislature created Maine’s first set of public defender offices. Compensation for the state public defenders was intended to mirror compensation for the state prosecutors. Unfortunately, this pay parity failed to happen. On Feb. 24, Attorney General Aaron Frey told the Legislature’s Judiciary Committee that an assistant public defender with five years experience is making on average roughly $22,000 more per year than a similarly situated assistant district attorney.

This pay imbalance has caused prosecutors to leave the profession leaving those that remain to face even further increased workloads. It demoralizes those who are dedicated to the profession who are left with more work for less pay. To address the unmanageable caseloads, prosecutors have begun to prosecute fewer crimes, ask for jail sentences on fewer cases and charge fewer felonies.

Some people say that prosecutors have discretion to control our caseloads. In theory, that sounds simple. In practice, it looks like a schizophrenic transient who is off his medication and experiencing psychosis. Should he be in jail, is the criminal justice system the place for him? No. But when he is repeatedly disorderly in front of a business, trespasses after being banned, is exposing himself or stealing repeatedly to feed himself, what then? 

Declining cases undermines the police, who the public expect to provide protection, business owners feel neglected, and the community sees the process as a revolving door of impotency. 

Setting all of that aside, declining to prosecute often means turning that man onto the street knowing that in a psychotic episode he does not have the faculties to access services, which are scarce and difficult to penetrate, that he will be homeless, exposed to the elements, possibly taken advantage of. A prosecutor knows that to move forward with prosecution would allow that person to stabilize in a safe environment and allow him access to mental health and medication management services that, while limited, are better than nothing. 

It is much easier to stand in moral indignation about the atrocity of prosecuting a mentally ill person when you are not the one faced with turning that person out to the street. 

Like it or not, the criminal justice process is where these problems land, on the laps of police and prosecutors, and we don’t have the luxury of ignoring them. We are the only safety net and we are left holding the weight of problems our state has otherwise failed to address. 

This is one example that demonstrates the complexity of just declining to prosecute. Now think about cases that involve victims of domestic violence or sexual abuse. It is prosecutors who are left to carry the burden of victims who are being failed by a broken system. What about drug trafficking cases? Do we not have an interest in fighting the fentanyl epidemic ravaging our state? It is not only low level crimes clogging our docket, it’s serious cases. So how do we decide which of those cases we should pursue?

District attorneys offices across the state are struggling with open positions that they can’t fill. Applicants are few and far between and those who come on often leave in the face of the unreasonable demands of the workload. And who can blame them? It is an act of will for even the most devoted of prosecutors to accept the fact that you can walk out the door at any time and have less work for higher pay. 

A bill to equalize pay between the district attorney offices and public defender offices was introduced this year. It should have passed without hesitation. Instead it was “carried over” to January, as if fair treatment of prosecutors and stability for Maine’s justice system can wait. 

If the Legislature continues to neglect prosecutors, this state will likely soon find itself with no one left to prosecute cases at all, just as it did with the defense bar a few years ago. Is that what it will take?