We have been saying for years that Maine’s system for providing lawyers to people who have been charged with a crime and can’t afford to hire one was a lawsuit waiting to happen.

That day has come.

This week, the American Civil Liberties Union of Maine filed a class-action lawsuit on behalf of five incarcerated people who claim that they have had next to no legal representation as they faced charges that could haunt them for the rest of their lives.

The suit charges that Maine has failed in its duty to train and supervise the lawyers who it assigns to defend poor people. “This failure has created two systems of justice: one for the wealthy and one for the poor,” said Zachary Heiden, chief counsel at the ACLU of Maine.

The Constitution promises equal justice under the law, and the Supreme Court has ruled that this promise can’t be kept without making sure that people have legal counsel when facing charges that could land them behind bars.

In 49 states, that constitutional requirement is met, at least in part, with a public defenders office, in which public employees represent the people who can’t afford a lawyer. Only Maine tries to fulfill its obligation by assigning cases to private lawyers who may not have the necessary experience or training or could be so overworked they can’t do a good job.


The lawsuit tackles one aspect of the system, in which two lawyers can represent as many as 80 clients as they make their first appearance before a judge. These “lawyer of the day” attorneys have no time to do any research into their clients’ cases or sometimes even speak to them before they enter a plea or argue for bail.

The ACLU’s complaint says Maine’s legal defense system for the poor “is broken,” and in that opinion they are not alone.

In 2019, the Sixth Amendment Center, a nonprofit organization that studies legal services for the poor, studied Maine’s system and concluded that the state’s standards for lawyers who want to be assigned cases are too lenient. Although the reviewers found many excellent assigned lawyers, there were “too many attorneys throughout the state who do not perform adequately.”

They found the $60-an-hour reimbursement rate inadequate to pay for a lawyer’s time and cover overhead, creating an incentive for lawyers to take on more cases than they can handle well.

In 2020, the state watchdog agency, the Office of Program Evaluation and Government Accountability, also released a report on the system, finding that it lacked “adequate standard operating procedures and formal written policies to govern its primary functions.”

A bill now before the Legislature would create a public defender office, and its supporters took the news of the ACLU lawsuit as added motivation to take action this year.

The state should not wait for a court to tell it what multiple outside observers have found: The system is not working. For years, it has been a lawsuit waiting to happen, and it’s long past time to fix it.

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