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Addressing justice related issues in Maine: research & proposals

Updated: May 11

The following research and discussion were presented to the Maine legislature on November 24, 2024, in order to bring attention to and propose solutions for the the deficiencies of the state's justice system, touching on issues related to public defense, reentry & rehabilitation, justice-impacted veterans, racial disparities, and more. The research portion was written by Benjamin Miller, and the discussion portion by Frank Zarro.

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Maine Justice Initiatives 2025

 

Presented to Maine State Representative Nina Milliken


November 24, 2024



Part 1: research


Overview


The inadequacies of Maine’s justice system have led to a series of ongoing crises that can no longer be ignored. While there are certain aspects of this system that are progressive and admirable, such as allowing incarcerated individuals to work remotely and vote, there are also aspects to it that are decades behind other states, key parts of the system that range from inefficient to unconstitutional. 


Maine’s neglected public defense system has led to a constitutional crisis decades in the making and an ongoing lawsuit from the American Civil Liberties Union. It is the only state in the country that relies almost entirely on private attorneys to provide counsel for defendants who can not afford on their own. This “lawyer of the day” system consistently leaves hundreds of indigent defendants without representation, depriving them of their sixth amendment right to legal counsel, one of several ways in which defendants are systematically deprived of their constitutional rights. When provided, representation by rostered attorneys of The Maine Commission on Public Defense Services (MCPDS) is often rushed and ineffective because of the enormous caseloads they are assigned. 


Maine has not had a parole system since 1976, a valuable tool for decreasing recidivism and reducing the amount of taxpayer money spent on incarceration. The lack of opportunities for expungement and exoneration also inhibit successful reentry, a cycle that disproportionately affects the state’s Black population. Despite 9% of the adult population being veterans, the sixth highest concentration of any state, Maine falls behind other states when it comes to providing them with specialized legal and reentry services.   


The issues with Maine’s justice system are deep rooted, complex, and interconnected.  Serious changes will be necessary for the state to begin fulfilling its neglected constitutional responsibilities. In places where Maine falls behind, other states can show us tested and effective models for improvement; Vermont provides an example of a robsut public defense system, in addition to successful rehabilitation and reentry methods; New York’s Veterans Defense Program shows us how Maine can better accommodate its large veteran population. 



Deficiencies of Maine’s public defense system


MCPDS caseloads and effectiveness 

Maine is the only state that almost exclusively utilizes private attorneys as assigned counsel to indigent defendants [1]. The Maine Commission of Public Defense Services is not capable of providing satisfactory oversight and resources to its severely understaffed roster of attorneys, an issue that disproportionately affects low-income defendants [2]. Nearly six decades after the Supreme Court of the United States ruled in Gideon v. Wainwright that states must provide attorneys to criminal defendants if they are unable to afford one, Maine was the last state to implement any sort of public defense program in 2022 with the establishment of the Rural Defenders Unit. The state’s first public defender’s office opened in late 2023 with only five attorneys, and a second office which opened just last August is currently struggling to hire any [3]. 


Even with these small steps forward, the situation has in many ways gotten worse. From November 2023 to May 2024, the number of defendants being denied counsel went up 500%. In the week of March 14 alone, an astonishing 633 accused individuals had not yet spoken to an attorney, and 373 of them had been waiting for over a month [4]. In June 2024, the number of cases without an attorney had increased by more than 1,250%, going from 66 to 893 [5]. The MCPDS’s number of rostered private attorneys fell from 402 in 2017 to 295 in May 2024, with only 134 of them being active [6]. There are two major factors that can be attributed to this decline: caseload and new standards. The COVID-19 pandemic caused massive caseload backup, resulting in impossibly large backlogs being assigned to rostered attorneys. Concurrently, new rules regarding training and caseload caps, partially due to the ACLUs ongoing lawsuit, have decreased the amount of cases rostered attorneys are allowed to take on at once. The following chart included in the 2024 Annual Report of the Maine Commission on Indigent Legal Services illustrates the number of total cases as compared to the total rostered attorneys over the years:


[7]
[7]

The hourly pay for MCILS rostered attorneys was increased in 2023 from $80 to $150 as a means of counteracting this [8]. Despite incremental improvements, the MCPDS is still unable to provide effective and timely counsel to many with no other option. It is simply not a replacement for an independent system of well trained public defenders. Consider the amount of “good outcomes” the MCPDS reported in the months of February, March and April of this year: eight, five, and five, respectively. Compare this with the amount of cases assigned to MCPDS attorneys in the same months: 2,371, 2,400, and 2,171 [9] [10] [11]. That means the average monthly ratio for good outcomes to new cases was 6 to 2,314. 


ACLU litigation

The ACLU is currently suing the state of Maine over ineffective assistance of counsel, lack of counsel, and unlawful imprisonment. This started in 2022 when they represented Andrew Robbins in Robbins v. Maine Commission on Indigent Legal Services: 


“Plaintiff Andrew Robbins is a Maine resident who is currently incarcerated at Cumberland County Jail awaiting trial following an arrest in the summer of 2021 on weapons charges. He was initially released on bail, but he has been in custody since a subsequent October 30, 2021, arrest for violating his conditions of release and violating a protective order, as well as misdemeanor drug possession. At his initial appearance, Mr. Robbins was represented by a "lawyer of the day," but was subsequently assigned to another lawyer. Since that point, Mr. Robbins has met his attorney only once, in the summer of 2021 while he was released, for an approximately 30-second conversation at his door. Mr. Robbins has never had a follow-up visit from his lawyer, nor has his lawyer ever arranged a video call, communicated with him about a plea offer, or reviewed his discovery materials with him. When Mr. Robbins received a copy of his discovery material, he observed that it contained materials relating to another defendant, but as far as Mr. Robbins knows his attorney never took any action based on this mistake. And while Mr. Robbins has two young daughters, who his wife is attempting to care for alone (while 5 working full time), his attorney has refused to ask for a bail hearing following his October 30, 2021, arrest,” [12].

This crisis has only gotten worse since the initial lawsuit in 2022, resulting in the case becoming a class action lawsuit with the ACLU representing multiple plaintiffs that have been deprived of their constitutional rights [13]. In March of 2024, the ACLU filed to amend the suit and was denied by the court. However, in May, the court allowed them to name the Attorney General and the State of Maine in their case, as well as add unlawful detention claims. In June 2024, the Attorney General, the State of Maine, and the Maine Commission on Public Defense Services asked that the court dismiss the case against them. On August 13, the Kennebec County Superior Court dismissed the Attorney General from the case but allowed the ACLU to name the state of Maine as a defendant, rejecting the state’s claim that it enjoys absolute immunity [14].


The State is currently appealing to the Supreme Court of Maine to reverse the lower court’s decision to add them as a defendant, and the trial is expected to begin on December 9 of this year [15]. One of the main focuses of the lawsuit is the Lawyer of The Day program used by the MCPDS, which is meant to provide defendants counsel at their initial hearings. The ACLU asserts that: 


“There is nothing per se unconstitutional about a lawyer-of-the-day program, but as implemented by MCILS the program is under-resourced to the point of constitutional deficiency. On any given day, as few as two lawyers may be on hand to meet with over eighty defendants. This regime violates the Sixth Amendment because it does not come close to providing an adequate number of lawyers to even meet with—let alone provide competent representation to—defendants in need of counsel concerning the implications of potential pleas or advocacy on bail and conditions of release.” [16]

Sixth Amendment Center report

In 2018, the MCPDS commissioned the Sixth Amendment Center to assess its shortcomings in upholding its clients' sixth amendment rights and recommend solutions [17]. Since the completion of the report in 2019, the MCPDS has addressed some of the issues highlighted by the Sixth Amendment Center but has failed to address others.


Among the issues raised is the way in which indigency is determined. Indigency screening is the responsibility of the MCPDS, a duty that may create a conflict of interest with its obligation to provide effective counsel to indigent defendants [18]. The Brennan Center for Justice’s guidelines for appointing defense counsel, published in 2008, state that jurisdictions must “ensure that screening is performed by someone who does not have a conflict of interest,” which requires they “not allow individual defenders and public defender programs to screen their own clients,” [19]. Quoting these guidelines, The Sixth Amendment Center asserted in its 2019 evaluation that “because an indigent defense system may have conflicting interests – between the rights of the defendants, and the system’s desire to limit the number of cases they must defend and ‘reject cases that are time-intensive, controversial, or undesirable in some other way’ – the screening function should be independent from the defense function,” [20]. Because of this, they recommended this authority be transferred from the MCPDS to an agency deemed appropriate by the Task Force for Pretrial Justice [21]. The MCPDS attempted to address this by supporting legislation that would have transferred the responsibility of financial screening to the Judicial Branch. L.D. 1685 as initially drafted would have achieved this, but the relevant section was removed before other provisions of the bill were enacted [22].


Another issue is the history of defendants, before ever receiving counsel, being systematically encouraged to negotiate plea deals with prosecutors in order to quickly resolve their cases [23]. Systems that encourage unrepresented defendants to meet with prosecuting attorneys violate the defendant’s right to “effective assistance of competent counsel” during plea negotiations, as confirmed by the United States Supreme Court in Lafler v. Cooper and Missouri v. Frye [24] [25]. This was enabled by the long and uncertain wait times to see a lawyer of the day and by the failure of the courts to adequately advise the defendants of their rights [26]. This issue has been partially addressed by the Maine legislator in two ways. First, in 2021 when it enacted 15 M.R.S.A. §815, which prohibits most forms of communication between prosecutors and uncounseled defendants, absent a known waiver [27]. Second, in 2023, it changed 15 M.R.S.A. §810 to require assignment of counsel before arrangements on felony charges [28]. While these are steps in the right direction, many of the conditions that have enabled this issue have gotten worse since 2018; during the time of the report, the MCPDS had 191 more rostered attorneys and 4,866 fewer cases than 2022 [29]. Defendants are still encouraged to waive their right to counsel in order to enter plea deals in situations where, were they given timely access to counsel, they otherwise would not.


Also mentioned in the report is the way in which defendants are advised of their rights in court [30]. At the start of initial appearances and 48-hour hearings, defendants are shown a twenty minute video produced by the Maine Administrative office of the Courts, the object of which is to inform them of their due process rights [31]. This practice stems from Maine Rule of Criminal Procedure 5(b): 


“When a defendant arrested, either under a warrant issued upon an indictment, an information, or upon a complaint filed in the Unified Criminal Docket or without a warrant is brought before the court or a defendant who has been summonsed appears before the court in response to a summons, the court, in open court, shall, unless waived by the defendant’s counsel, inform the defendant of: (1) the substance of the charges against the defendant; (2) the defendant’s right to retain counsel, and to request the assignment of counsel and to be allowed a reasonable time and opportunity to consult counsel before entering a plea; (3) the right to remain silent and that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant; (4) the maximum possible sentence, and any applicable mandatory minimum sentence; and (5) the defendant’s right to trial by jury. The statement of rights required to be given by this Rule shall be stated live to the defendant in open court by the court, or stated by the court in a video recording viewed by the defendant before his or her first appearance,” [32].

The report states that every courtroom in each sample county played the video before the judge took the bench. No one ensures that the defendant has watched, understood, or has the capacity to understand the video, and tardy defendants are often never shown the video at all. This practice is not an effective substitute for a judge directly informing a defendant of their rights and confirming that they are understood. Although the video advises defendants to consult a lawyer, they are often unable to see one for weeks or months at a time [33]. 

        

Comparing Maine and Vermont 

Maine could greatly benefit from adopting Vermont’s model for indigent defense. Maine is the only state in the country that relies almost completely on private attorneys to represent indigent defendants, but adopting Vermont’s hybrid system would mean that MCPDS would not have to be totally done away with. Instead of nearly all indigent defendants being assigned private attorneys with enormous caseloads and their own private practices, each county would have its own office of dedicated public defenders, with private attorneys being available to assist overflow. With less burdensome caseloads, these attorneys could undergo more training, resulting in better outcomes for their clients. The difference in supervision is one of the most stark contrasts between the two states’ systems; each public defender's office in each of Vermont’s counties has a supervising attorney that monitors and assists the staffed attorneys to ensure they provide quality representation to their clients, while the MCPDS provides no supervision at all [34]. The Sixth Amendment Center noted in their 2019 report that since the MCPDS lacks “systems or capacity to provide oversight, it is difficult to know the extent of any potential problems,” [35]. MCPDS attorneys are only required to complete eight hours of training per year [36], which is below the required twelve hours set for all Maine attorneys [37].


While the cost of establishing public defender’s offices in each county may concern some, it is likely that they will cost the state much less money in the long run than the current system. Since Maine is significantly larger than Vermont, compare it to New Hampshire in this instance since both states have a population of near 1.4 million. While Maine struggles to provide its indigent defendants with representation well or at all, New Hampshire is able to provide theirs with quality public defenders. In Summer of 2022, the NCPDS requested $62.1 million from the state legislator, more than double its budget the previous year [38], while New Hampshire spent $23.7 million on public defense that year [39]. It is much more difficult to predict caseloads and regulate costs in systems of private attorneys. Systems centered around public defender’s officers like in Vermont and New Hampshire are by their nature much easier to monitor, regulate, and hold accountable. Even outside of the MCPDS’s budget, the current system costs the state large sums of money in the form of incarceration. A study done in Baltimore, Maryland found that defendants with attorneys were released two and a half times as much from pretrial custody as those without [40]. This is because judges were able to make more informed decisions when the defendant had representation.


A public defender’s office in each county would also solve the geography problem the MCPDS faces; since rostered attorneys are primarily concentrated in urban centers, rural defendants are even less likely than those in more urban places to receive counsel [41]. The Rural Defender’s Unit, the state’s first public defender's office established in 2022, is meant to counter this problem, but as of August 18 only employed five public defenders in Augusta, three in Caribou, and one in Bangor [42]. The Rural Defenders Unit is struggling to hire attorneys partially because of the high standard held for applicants by the state. If Maine were to follow in Vermont’s footsteps by continually training and supervising its public defenders, it may be worth it to lower the standards for new hires. Maine’s opening of the Rural Defender’s Unit is a small step in the right direction, but it is not nearly enough. 


Maine’s public defense system is all at once ineffective, unchecked, constitutionally deficient, and financially irresponsible. In comparison, the Vermont model is more efficient, transparent, fair, and cost effective. Following their lead by establishing public defender’s offices in each county is Maine’s best way of finally ending this years-long crisis and fulfilling its sixth amendment obligations. 


Reentry & rehabilitation


Parole

Another issue with Maine’s justice system is its lack of parole. Maine is one of only fourteen states without a discretionary parole system, becoming the first to abolish it in 1976, leaving the majority of incarcerated individuals no opportunities for review. A recent report by the Prison Policy Institute compared the probation and parole systems of each state, highlighting that probation in Maine is strict in comparison to parole systems in other states, and these conditions inhibit successful reentry [43]. This no doubt contributes to the overbearing caseload of the state’s public defenders, as well researched and funded parole systems, such as Vermont’s Risk Intervention Services (RIS) model, have been shown to decrease recidivism rates. In October of 2023 it was reported that the recidivism rate of individuals participating in Vermont’s RIS system was 23%, significantly lower than the 42% three-year recidivism rate of the total population released from incarceration in 2019. Compare this to the fact that in 2017, 44% of prison admissions in Maine were due to probation revocations [44]. 


This is at great cost to the state, as keeping people incarcerated is expensive, and Maine spends an average of $117,000 per year on incarcerated individuals, the fourth highest amount of any state [45]. This indicates a strong need for rehabilitation focused parole in the state, one that can address the post-incarceration needs of those released to lower recidivism rates. This is another way Vermont can serve as a good example. The RIS system benefits the workforce by providing participants with education and training to those seeking employment after release [46]. RIS focuses on evidence based solutions that address the thoughts and behaviors that lead individuals to commit crime [47], and a similar approach may be useful in Maine, considering that in 2021, 45% of the state’s prison population was on psychotropic medication [48], a 20% increase from 2002 [49].


Expunging and sealing of records 

Yet another challenge to reentry in Maine is the state’s unique lack of opportunities for the expunging or sealing of criminal records. Expunging of records does not exist in the state, only sealing, and the only crimes eligible to be sealed are Class E misdemeanors and certain marijuana related offenses committed prior to 2017. Even the narrow list of crimes eligible are subject to additional requirements, notably that individuals must request the seal at least four years after completing their imposed sentence, a longer time than the standard three-year recidivism period [50]. Nationally, 33% of formerly incarcerated individuals are unable to find employment four years after release [51]. Although strict, this statute was even narrower prior to August 2024, including an age limit of 28 years old and no inclusion of marijuana related offenses [52].


The accessibility of these records seriously diminishes the amount and quality of employment opportunities of those who possess them; people with felony convictions make an average of just $23,000 a year [53]. And although Maine does prohibit employers from inquiring about criminal history on job applications, this does not actually prevent them from accessing them in background checks [54]. Being unable to find good employment opportunities greatly increases one’s chance of recidivism, meaning more opportunities for expunging/sealing criminal records is a valuable tool for rehabilitation. 


Exoneration 

According to the University of California, Irvine’s National Registry of Exonerations, since 1989 there has only been four people exonerated of crimes in Maine, and only one person has been exonerated of felony charges. In 2009, Jonathan Carey was indicted on class B and C unlawful sexual contact and convicted on March 16, 2012. Later evidence found that the alleged victims had been pressured by their mother into giving false testimony against Carey. She had been stealing money from Carey for years, and devised the plan after Carey told her that if she did not stop he would go to the police. Carey was exonerated in 2017 [55] [56]. The National Registry of Exonerations only goes back to 1989, but according to Carol Waltman (president of Trial and Error) in a 2015 letter (written before Carey’s exoneration), Maine had not had a single felony exoneration in its entire history [57]. 


Trial and Error is is a nonprofit that advocates for the exoneration of Dennis Dechaine, who was found guilty in 1989 for the murder of a twelve year old girl. The case received national attention, and the conviction remains controversial in Maine. While there are reasonable arguments for and against his guilt, the surfacing of DNA evidence in 2022 that excludes him from several key crime scenes makes a new trial just as reasonable [58]. Dechaine has appealed for a new trial numerous times but has been continuously denied. After such a long period of time and with such questionable evidence, the fact that the state will not entertain the idea of a new trial is exemplary of the larger issue, that there is very little opportunity to prove innocence post-conviction, regardless of evidence. Note that Maine is one of only 13 states that have never exonerated anyone using DNA evidence [59]. 


Demographic specific issues


Racial inequality

Out of all fifty states, Maine has the sixth smallest Black population per capita, making up 2.33% of all residents [60]. Despite this, Maine’s Black/white incarceration disparity is 9 to 1 [61]. A contributing factor to this is the fact that 26% of the state’s Black population lives below the poverty line, two and a half times more than white non-Hispanic residents [62], meaning they are more likely to rely on the often ineffective representation from MCPDS attorneys, if they are able to see one before being pressured into a guilty plea. Black people are also more likely to be given longer sentences than white people when convicted of the same crime [63]. 


Black Mainers being poorer, having less access to quality legal representation, not having parole, not having enough opportunities for record sealing/expungement, and living in a state where exoneration is near impossible, are subjected to compounding factors that result in a systematic disadvantage when it comes to rehabilitation and breaking cycles of recidivism. Black Mainers are especially in need of a quality public defense system and rehabilitation/reentry programs like parole and expungement options. Such improvements to the state’s justice system would not only benefit the state as a whole, they would be important steps towards racial equality. 


Legal services for veterans

Maine has the fourth highest number of veterans per-capita out of every state in the country [64], necessitating policies that address their unique needs. At a rate of 30.5%, Veterans in Maine are almost twice as likely as non-veterans to be disabled [65]. Their participation rate in the workforce is significantly lower than non-veterans and declining [66]. Factors like these make it harder for justice-involved veterans to be able to afford private counsel, making the need for quality public defense systems that much more important. Veterans are more likely to suffer from certain issues that put them at increased risk of becoming justice-involved; they are more likely than non-veterans to suffer from health issues such as PTSD and chronic pain, which also puts them at greater risk of substance abuse [67]. Because numerous and unique ways in which veterans are at risk of justice-involvement, there is not just a need to provide them with counsel, there is a need to provide them with counsel that is specifically trained to accommodate their unique circumstances. Since the MCPDS does not provide or require specialized training for when its attorneys represent veterans, and MCPDS attorneys are normally too underpaid, undertrained, and overworked to represent non-veterans, indigent justice-involved veterans are even less likely to receive effective counsel.


New York’s funding of the Veterans Defense Program (VPD) is an example of how a state can successfully meet the legal needs of its veteran population. The VPD trains and provides legal assistance to public defense attorneys who represent veterans and service members. One of the VPD’s priorities is diverting justice-involved veterans from incarceration to treatment programs. In 2022, the VPD helped avoid 218 years of incarceration; from 2016 to 2022 saved the state of New York $112 million it would have spent incarcerating justice-involved veterans and service members [68]. The VPD provides mentoring to incarcerated individuals and connects them to benefits and treatment they would not otherwise not know to seek out, fostering rehabilitation [69]. They also assist veterans with issues related to housing and employment, further negating risks of becoming justice-involved [70].


By following New York’s example, Maine could improve the conditions of its large veteran population and their relation to the justice system, as well as save millions of tax-payer dollars spent every year on incarceration.


Citations:

[1] Name changed from Maine Commission on Indigent Legal Services (MCILS) on March 21, 2024 (L.D. 653). Both names may be used at different points in this document. 


[2] “Nearly 1,000 Maine criminal cases are waiting for lawyers.” The Piscataquis Observer, July 6, 2024. 


[3] Keefe, Josh. “Public defender offices are opening across Maine. The next step: staffing them.” Bangor Daily News, August 19, 2024. 


[4] Miller, Kevin. “Maine ACLU says number of un-represented criminal defendants has 'skyrocketed’.” Maine Public, May 14, 2024. 


[5] Keefe, Josh. “6 months in, Maine’s 1st public defenders’ office talks strategy.” Bangor Daily News, June 17, 2024.  





[9] “MCILS March 11, 2024 Commissioner’s Meeting Packet,” page 15. MCILS, 2024. 


[10] “MCILS April 10, 2024 Commissioner’s Meeting Packet,” page 5. MCILS, 2204.  



[12] “ACLU Initial Lawsuit Against State of Maine,” pg. 5. ACLU Maine, 2022.


[13] Hogan, Samathan. “Maine judge grants class action status to ACLU suit on public defense system.” The Maine Monitory, July 18, 2022. 


[14] Budion, Kaitlyn. “Court says ACLU can name state in Maine indigent defense lawsuit.” Bangor Daily News, August 15, 2024. 



[16] “ACLU Initial Lawsuit Against State of Maine, 2022,” Paragraph 8. ACLU Maine, 2022. 




[19] Eligible for Justice: Guidelines for Appointing Defense Counsel,” pg. 5. Brennan Center for Justice, 2008.













[31] Court Help Videos. State of Maine Judicial Branch.




[34] May, Natalie. “Confronting Maine’s Indigent Defense Crisis: Lessons to be Learned From The Green Mountain State,” page 144. Vermont Law Review, January 2, 2024.  



[36] Training. Maine Commission on Public Defense Services. 


[37] CLE/Education. Maine State Bar Association. 


[38] Hogan, Samantha. “Maine reaches ‘point of failure,’ seeks $62.1 million for indigent public defense.” The Maine Monitor, August 22, 2022. 


[39] “The State Budget for Fiscal Years 2022 and 2023.” New Hampshire Fiscal Policy Institute, August 17, 2021.


[40] Colbert, Douglas. “Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail,” pg. 1719 - 1720. University of Maryland School of Law, 2002. 


[41] Allen, Emily. “Maine public defense office submits early $64.5 million request for next budget.” Portland Press Herald, August 26, 2024. 


[42] Keefe, Josh. “Public defender’s offices are opening across Maine. The next step: staffing them.” The Maine Monitor, August 18, 2024. 


[43] Appendix Table 1: Standard probation conditions. One Size Fits None: How 'standard conditions' of probation set people up to fail. Prison Policy Institute, 2024.


[44] “Justice Reinvestment in Maine," pg. 1. Justice Center, December, 2019.  


[45] “Annual Survey of State and Local Government Finances.” Census Bureau, 2024. 



[47] Offender Services, Vermont Department of Corrections.


[48] “2021 Year End MDOC Adult Data Report,” pg. 7. Maine Department of Corrections, 2022.


[49] “REPORT ON THE CURRENT STATUS OF SERVICES FOR PERSONS WITH MENTAL ILLNESS IN MAINE’S JAILS AND PRISONS,” 2002. The Citizens Committee On Mental Illness, Substance Abuse, and Criminal Justice and Nami, September, 2022. 


[50] Sealing Your Criminal Record. State of Maine Judicial Branch.


[51] Wang, Leah. “New data on formerly incarcerated people’s employment reveal labor market injustice.” Prison Policy Institute, February 8, 2022. 


[52] Maine Restoration of Rights & Record Relief. Collateral Consequences Resource Center


[53] “Voices of Redemption: A National Survey of People with Records.” Alliance for Safety and Justice, 2023.


[54] “Maine's New Fair Chance in Employment Labor Law Now in Effect.” Maine Department of Labor, 2021. 


[55] “Jonathan Carey.” National Registry of Exonerations, University of California, Irving 


[56] Carey v. State, 2015. Casetext.


[57] “Maine soon may be only state without an exoneration” Kennebec Journal, February 3, 2015.


[58] Andrews, Jordan. “DNA testing excludes Dennis Dechaine from some key crime scene evidence.” Portland Press Herald, November 6, 2022. 


[59] Emmanual, Adeshina. “3 states have never exonerated a prisoner based on DNA evidence. Here’s why.” Injustice Watch, December 16, 2019.



[61] “The Color of Justice: Racial and Ethnic Disparity in State Prisons.”The Sentencing Project, 2021. 


[62] Myall, James. “Census data shows most Mainers ahead compared to pre-pandemic — but poorest still struggling.” Maine Morning Star, September 25, 2024. 


[63] Myall, James. “Data on racial inequality shows need for solutions to advance racial justice.” Maine Center for Economic Policy, June 3, 2019.


[64] American Community Survey. Census Bureau, 2023. 


[65] “Workforce conditions for Veterans in Maine,” page 15. Maine Department of Labor, 2018. 


[66] Workforce conditions for Veterans in Maine, page 5. Maine Department of Labor, 2018. 



[68] Veterans Defense Program 2022 Annual Report. New York State Defenders Program. 


[69] Veterans Defense Program 2022 Annual Report. New York State Defenders Program. 


[70] Veterans Defense Program 2022 Annual Report. New York State Defenders Program. 



Part 2: background and proposal for discussion


In 2014 and 2015 New York State was confronted with litigation brought by the ACLU challenging the constitutional sufficiency of the County Law 18(b) Assigned Counsel system of providing legal services for low-income people accused of crimes.


At the time I was on staff of the New York State Defenders Association, and we participated in a plan to settle the litigation in a manner that would provide a more robust public defense system in the state.


Unlike Maine, New York's 62 counties do have public defender's offices. The County Law 18 (b) panel was designed to supplement the overburdened, understaffed, underfunded or conflicted county public defender system. Like Maine, the 18 (b) panels were comprised of lists of private attorneys who could be called upon by the court to provide defense services to low-income people. Unlike Maine, the New York Assigned Counsel program is part of an established state public defense system. There was no delineation of attorneys by years admitted or even areas of practice. For the most part this was presumed to be known by the trial judges who selected attorneys on a case by case as needed basis. In NYS, funding of the assigned counsel program is incorporated in a county budget, which in effect is a derivative of the state judiciary budget, and the program is administered by the State Office of Court Administration, through the judges of the state's trial level courts of record. There existed at the time, no right to counsel at arraignment. The settlement addressed that particular deficiency. 


In the course of settling the case, there were two camps, one which was favored by then Governor Andrew Cuomo which would make meaningful but incomplete reforms to the state's public defense system, and the other by public defense advocates who proposed far reaching structural reforms which would in effect establish an independently funded and administered statewide public defense authority, financed not by new taxpayer funding but through the issuance of private sector social impact bonds. At the time, I worked with the late Jonathan E. Gradess, the Executive Director of the New York State Defenders Association, to construct such a settlement solution and we worked closely with the Urban Investment Unit at Goldman Sachs in New York on the funding aspects and with the Governor's staff to advance these new initiatives for action on public defense reform. At the end of the day, Governor Cuomo insisted on the more incremental approach, and no further steps were taken on the formation of an independent defense entity. See this article I wrote detailing what the new initiatives would look like, and another describing the settlement ultimately reached and enacted in Hurrell-Harring. The reforms achieved were welcomed, but the system remains inadequate and unresponsive to the needs of low-income people confronting the state's criminal justice system. 


In the following year, I worked with Mr. Gradess and later with my colleague Attorney Art Cody, (Ret. Capt. US Navy) in creating the New York State Veterans Defense Program which provided training to public defenders representing veterans whose service-related PTSD, TBI and alcohol and substance abuse had led them to encounter the civilian criminal justice system. See above attachment on VDP and video of a NYS Prison Veterans Residential Therapeutic Program which led to the creation of the VDP. I created the curriculum for that program and provided the initial funding for VDP. VDP is now fully state funded and serving thousands of veterans. 


The New York State scenario is quite similar to what we are currently confronted with in Maine. 

Also included at the top of this document is a research paper I prepared this week with data focusing on four related areas in need of structural attention in the Maine justice system.


My purpose is to propose the creation of an independent public defense entity and veteran's defense program funded through social impact bonds, and separately, the establishment of a parole pilot project in selected counties, with data and outcomes collected and evaluated on a periodic basis for use by Maine officials. The parole pilot project would be supported by a comprehensive reentry program with the inclusion of conviction expungement clinics funded by pay for success contracts, based on an 18-month pilot program my colleagues and I recently conducted in Eastern North Carolina. 

See also, news video and article on North Carolina Expungement clinic. 



Public Defense


A State Public Defender's office with offices in each of the state's counties with staffing and resources on par with local DA resources. 


This could initially be a pilot project in selected counties. The funding source would be through social impact bonds. We would introduce you to our colleagues at Maycomb Capital in New York City. See www.maycombcapital.com. See also Maycomb Capital letter of support for WhenPeopleWork and chart depicting how pay for success funding works. See again the article on NYS Defense, which explains the difference between Pay-for-Success bonds and Pay-for-Success contracts. Same basic model, different financial tools. The pilot project can also include the establishment of a Veterans Defense Program similar to the New York State Defenders Association model. See NYS Defenders Association VDP description. See also YouTube video of an incarcerated veterans therapeutic program. 


Of all criminal justice and prison reform initiatives, the creation of a formal, robust public defense system is the most crucial. Defense lawyers are the gatekeepers of the prison and for how long. For better or worse, the public defense bar plays a major part in determining who goes to prison and for how long. Maine needs to take bold steps in addressing the judicially pronounced inadequacies of its indigent defense apparatus. 



Parole, reentry-expungement-mental health 

Maine could greatly benefit from the establishment of a parole system to release more state prisoners who are ready to return to their communities but confined to prison because of the imposition of determinate sentences. Maine has many progressive policies and programs for incarcerated populations. These prominently include nationally recognized college and post graduate degree offerings, remote outside employment opportunities, access to the internet, virtual academic employment positions, full voting privileges and more. A carefully constructed parole system based on the Vermont Model would be a logical step for Maine to take. The prison residents who have qualified for these programs have already demonstrated a commitment to rehabilitation and the very fact that the Department of Corrections has seen fit to include them in these programs speaks volumes about their parole readiness. The Vermont model presumes release eligibility upon reaching the minimum year threshold. Only the institutional record for the instant offense can be utilized to measure parole eligibility. 


Maine could make parole release contingent on parolees' participation in designated post release programming and services funded through the use of pay for success contacts. 

  • A carefully constructed and supervised pilot project selecting state prisoners who have distinguished themselves by their participation in facility programming would be very revealing and the data we collect and analyze would be a powerful tool for state policy and lawmakers to use in addressing this critical next step for Maine's criminal justice and prison initiatives. 

  • Utilizing recognized post release programs and services which are designed for successful reentry and minimal or no recidivism based on reliable social impact data and metrics, reduces prison populations, saves taxpayer dollars, strengthens families and communities, reduces crime, reduces reliance on social services programs, increases tax revenues, reduces justice system involvement of the children of incarcerated people, and more

  • Establishing professionally administered mental health and wellness programs as part of an integrated, comprehensive reentry program which would specifically address the issues affecting justice impacted individuals, families and communities, including opioid dependence and use, veterans’ mental health issues and alcohol and other substance abuse. See program attached service descriptions.

  • Establishing Expungement clinics to remove the barrier of a criminal record thereby opening up badly needed employment and housing opportunities for justice impacted people.

In the Federal Judiciary there exist in the U.S. District Court, Reentry Courts presided over by the Chief Judge of the District in conjunction with the local Federal Defenders Office, US Attorney's office, Bureau of Prisons and Probation Department. See description of reentry court program in U.S. District Court, District of Illinois. I envision a similar collaboration here in Maine in contracting for pay for success programs and initiatives with the Office of Indigent Defense, the Courts, the Attorney General and District Attorneys', Department of Corrections, Probation Department and eventually a new Division of Parole. 


 
 
 

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