The Right to Criminal Legal 

Defense in Maine

A Report of the 

Maine Advisory Committee to the 

U.S. Commission on Civil Rights

November 2023
Acknowledgments

The Maine Advisory Committee (Committee) deeply appreciates the contributions of each 

of the speakers who presented to the Committee during their public meetings in 

connection with this topic. The Committee is also grateful to members of the public who 

spoke during the selected periods of public comment, and those who shared testimony in 

writing. The Committee sincerely appreciates and recognizes the work of U.S. 

Commission on Civil Rights intern Jennifer Randall for her work on our report.

Advisory Committees to the U.S. Commission on Civil Rights

By law, the U.S. Commission on Civil Rights has established an advisory committee in each of 

the 50 states and the District of Columbia. The committees are composed of state citizens who 

serve without compensation. The committees advise the Commission of civil rights issues in 

their states that are within the Commission’s jurisdiction. They are authorized to advise the 

Commission in writing of any knowledge or information they have of any alleged deprivation of 

voting rights and alleged discrimination based on race, color, religion, sex, age, disability, 

national origin, or in the administration of justice; advise the Commission on matters of their 

state’s concern in the preparation of Commission reports to the President and the Congress; 

receive reports, suggestions, and recommendations from individuals, public officials, and 

representatives of public and private organizations to committee inquiries; forward advice and 

recommendations to the Commission, as requested; and observe any open hearing or conference 

conducted by the Commission in their states.
1

Maine Advisory Committee to the 

U.S. Commission on Civil Rights

The Maine Advisory Committee to the U.S. Commission on Civil Rights submits this report

regarding indigent legal services in Maine. The Committee submits this report as part of its 

responsibility to study and report on civil rights issues in the state. The contents of this report are 

primarily based on testimony the Committee heard during public meetings held via 

videoconference on October 20, 2022; November 15, 2022; and December 15, 2022. The 

Committee also includes related testimony submitted in writing during the relevant period of 

public comment.

This report begins with a brief background of the issues to be considered by the Committee. It 

then presents primary findings as they emerged from this testimony, as well as recommendations 

for addressing areas of civil rights concerns. This report is intended to focus on civil rights 

concerns regarding the right to legal defense for indigent persons. While additional important 

topics may have surfaced throughout the Committee’s inquiry, those matters that are outside the 

scope of this specific civil rights mandate are left for another discussion.

Maine Advisory Committee to the 

U.S. Commission on Civil Rights

Samantha Le, Chair, Bangor

Diane A. Khiel, Vice Chair, Orono

Mufalo Chitam, Old Orchard Beach

Gia Drew, Portland

Judith D. Jones, Camden

Eric M. Mehnert, Lincoln

Nicole Rancourt, Minot
2

Overview 

On June 22, 2022, the Maine Advisory Committee (Committee) to the U.S. Commission on Civil

Rights (Commission) adopted a proposal to undertake a study of indigent legal services for

criminal defense in Maine. The focus of the Committee’s inquiry was to examine the right to

legal defense for indigent persons facing imprisonment, referring to individuals who are unable

to afford a private attorney.1 From a civil rights perspective, the Committee sought to consider

whether Maine’s current system of providing legal services for indigent persons has a

disproportionate impact on people in the federally protected classes.

As part of this inquiry, the Committee heard testimony via videoconferences held on October 20,

2022; November 15, 2022; and December 15, 2022.

2 The following report results from a review

of testimony provided at these meetings, combined with written testimony submitted during this

timeframe. It begins with a brief background of the issues to be considered by the Committee. It

then identifies primary findings as they emerged from this testimony. Finally, it makes

recommendations for addressing related civil rights concerns. This report focuses on indigent

legal services in Maine. While other important topics may have surfaced throughout the

Committee’s inquiry, matters that are outside the scope of this specific civil rights mandate are

left for another discussion. This report and the recommendations included within it were adopted

unanimously by the Committee on September 14, 2023.

Background

The Committee took up this study to examine whether certain laws, policies, or practices in 

Maine restrict the right to criminal legal defense. Specifically, the Committee studied whether 

Maine’s lack of a public criminal defender office impacts the civil rights of indigent criminal 

defendants under federal and Maine state criminal laws. This particular topic on indigent legal 

services is only one part of Maine’s legal system and does not address Maine’s court system, bail 

system, and other legal proceedings. The Committee conducted this study under the authority of 

the following federal civil rights and Maine state protections:

The right to counsel derives from:

● The Sixth Amendment of the U.S. Constitution

1 U.S. DEP’T OF JUST., NCJ 250249, SPECIAL REPORT: STATE-ADMINISTERED INDIGENT DEFENSE SYSTEMS (May 3, 

2013).

2 Meeting records and transcripts are available in Appendix. 

Briefing before the Maine Advisory Committee to the U.S. Commission on Civil Rights, October 20, 2022, (webbased), Transcript (hereinafter cited as “October 20, 2022 Briefing”).

Briefing before the Maine Advisory Committee to the U.S. Commission on Civil Rights, November 15, 2022, (webbased), Transcript (hereinafter cited as “November 15, 2022 Briefing”).

Briefing before the Maine Advisory Committee to the U.S. Commission on Civil Rights, December 15, 2022, (webbased), Transcript (hereinafter cited as “December 15, 2022 Briefing”).
3

● Article 1, Section 6 of the Maine Constitution

● Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963)

● State v. Cook, 1998 ME 40, ¶6, 70 A2d 603

The right to effective assistance of counsel derives from:

● U.S. v. Cronic, 466 U.S. 648, 659-660 (1984)

● Strickland v. Washington, 466 U.S. 668, (1984)

● Theriault v. State, 125 A.3d 1163 (Me. 2015)

The right to counsel before trial derives from:

● Rothgery v. Gillespie Cty., 554 U.S. 191, 217 (2008)

Maine is required by statute to establish standards governing the delivery of indigent legal 

services via the Maine Commission on Indigent Legal Services (MCILS):

Title 4 M.S.R.A. §1801 et. seq.3

The establishment of the Sixth Amendment in the U.S. Constitution guaranteed the constitutional 

right to the assistance of counsel and representation for the accused facing incarceration.4If an 

accused individual cannot afford counsel, the state government is obligated to appoint legal 

counsel, at no cost to the defendant in order to ensure a fair and speedy trial.5 This right to legal 

counsel was further detailed in the Gideon v. Wainwright case, where defendant Clarence Earl 

Gideon, who was being charged in Florida with breaking and entering, was denied counsel by 

the state due to the minor nature of his crime. Gideon appealed to the Supreme Court, stating his 

Sixth Amendment right to representation was violated. The Supreme Court ruled in favor of 

Gideon and amended that regardless of the severity of the crime, all state courts must provide 

defendants with counsel.

6

3 Title 4 M.R.S.A. §1802(4) defines “indigent legal services” as legal representation provided to: “A. An indigent 

defendant in a criminal case in which the United States Constitution or the Constitution of Maine or federal or state 

law requires that the State provide representation; B. An indigent party in a civil case in which the United States 

Constitution or the Constitution of Maine or federal or state law requires that the State provide representation; 

C. Juvenile defendants; and D. An indigent defendant or party or a juvenile for the purpose of filing, on behalf of 

that indigent defendant or party or juvenile, a petition for certiorari to the Supreme Court of the United States from 

an adverse decision of the Law Court on a case for which services were previously provided to that defendant or 

party or juvenile pursuant to paragraph A, B or C.” 4 M.R.S.A. §1802(4). 

4 Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963). 

5

Id.

6

Id.
4

Not only is the state obligated to provide counsel, but the counsel must be deemed effective at 

supporting the defendant. In the U.S. Supreme Court case of U.S. v. Cronic, defendant Gary 

Cronic argued his attorney was ill-prepared for his trial and unable to provide proper and 

effective representation; therefore, violating his Sixth Amendment rights.7 This case pushed the 

U.S. Supreme Court to expand the scope of the Sixth Amendment and acknowledge legally when 

cases with poor representation hinder a defendant’s ability to a fair and speedy trial.8 Rothgery v. 

Gillespie County is another key case that extended the definition of the Sixth Amendment right 

to counsel. In this case, the Supreme Court established that a defendant’s right to representation 

begins immediately upon a defendant being charged with a crime. This clarification ensures that 

in every step of the legal proceedings, even before facing a judge, defendants have access to 

attorney support.9

Maine’s own Constitution, under State v. Cook,

10 guarantees that all indigent persons will be 

provided with effective criminal defense by the state. The Maine Commission on Indigent Legal 

Services (MCILS) was established by the Maine Legislature with the mandate to provide “highquality representation to indigent criminal defendants, juvenile defendants, and children and 

parents in child protective cases” and the funding must be “managed in a fiscally responsible 

manner, free from undue political interference and conflicts of interest.”11 MCILS oversees “a 

system of assigned private counsel and contract counsel to provide quality and efficient indigent 

legal services.”12

Yet, Maine is the only state that relies mostly on private contracted attorneys to provide indigent 

public defense instead of a public defender’s office established by the state.

There is public concern that MCILS has not met its constitutional obligations. According to a 

2019 report conducted by the non-profit organization, the Sixth Amendment Center,13 the 

services provided by MCILS are not adequately meeting the standards of the Sixth Amendment. 

The key findings of the report highlighted that MCILS lacks proper supervision and training for 

attorneys, fails to eliminate underqualified attorneys, encourages gaps in representation instead 

of comprehensive legal counsel from one attorney, and is unable to address excessive attorney 

caseloads.14 Another report, “Maine Commission on Indigent Legal Services (MCILS) – An 

evaluation of MCILS’s structure of oversight and the adequacy of its systems and procedures to 

7 U.S. v. Cronic, 466 U.S. 648, 659-660 (1984). 

8

Id.

9 Rothgery v. Gillespie County, 554 U.S. 191, 194 (2008). 

10 State v. Cook, 706 A.2d 603, 605 (Sup. Ct. Me.1998)

11 ME. REV. STAT. ANN. tit. 4, § 1801 (2018) 

12 “About Us,” Maine Commission on Indigent Legal Services,” https://www.maine.gov/mcils/about (accessed July 

31, 2023).

13 Sixth Amendment Center, The Right to Counsel in Maine: Evaluation of Services Provided by the Maine 

Commission on Indigent Legal Services (Boston, MA: 2019), 25-85,

https://sixthamendment.org/6AC/6AC_me_report_2019.pdf. 

14 Ibid.
5

administer payments and expenditures,” conducted by the Office of Program Evaluation & 

Government Accountability of the Maine State Legislature in 2020 for the Government 

Oversight Committee,

15 also found issues with MCILS. The report identified that MCILS 

provides unclear policies and guidelines, lacks sufficient defender data, poorly monitors attorney 

vouchers, is understaffed, and does not provide enough financial support.16

In July 2022, the American Civil Liberties Union (ACLU) of Maine sued MCILS on behalf of 

low-income defendants in the case of Robbins v. MCILS.

17 The lawsuit alleges that MCILS is 

failing to provide constitutionally adequate and effective legal indigent criminal representation in 

Maine.18 On August 21, 2023, MCILS and its Commissioners and the ACLU entered a proposed 

settlement agreement in Robbins which outlines specific recommendations for ensuring 

appropriate provision of indigent legal services.19 On September 13, 2023, Justice Michaela 

Murphy of the Maine Superior Court rejected the agreement, noting that it amounted to a four 

year stay of the proceedings during which the State and ACLU would work on a list of reforms 

which they “agreed to advocate for over the next four years.” The concern, expressed by Justice 

Murphy, was that during the four year stay, the agreement precluded an individual who suffered 

due process violations, due to a failure of Maine’s criminal defense system, from seeking redress 

by claiming systemic failure.20 The ACLU of Maine is also actively engaging with the state 

legislature to pass legislation that allows for speedier trials.21 This call to action is meant to set 

clearer guidelines and timelines and to address the growing problem of court back log, all which 

may impact timely appointment of counsel.

In short, there is legitimate concern and evidence via the reports, current lawsuit, and legislative 

action that MCILS is not meeting its mandate stated in the state constitution and in the Sixth 

Amendment to provide effective indigent legal counsel. To address these problems, the Maine 

legislature in April 2022 created a pilot program: the Rural Defender Unit, consisting of five 

15 Office of Program Evaluation & Government Accountability of the Maine State Legislature, Maine Commission 

on Indigent Legal Services (MCILS) – An Evaluation of MCILS’s Structure of Oversight and the Adequacy of its 

Systems and Procedures to Administer Payments and Expenditures., Report No. SR-MCILS-19 (Nov. 2020).

16 Ibid.

17 Robbins v. MCILS, No. KENSC-CV-22-54 (Me. Super. Jun. 2, 2022). 

18 Id.

19 See Joint Motion, Exhibit 1 (August 21, 2023) in Robbins et. al v. MCILS et. al, Docket No. KENSC-CV-22-54, 

https://themainemonitor.org/wp-content/uploads/2023/08/Robbins-MCILS-23.08.21-Joint-Motion.pdf; Samantha 

Hogan. “Settlement Reached by Maine and ACLU to Overhaul Indigent Legal Services.” The Maine Monitor. 

August 29, 2023. https://themainemonitor.org/settlement-reached-by-maine-and-aclu-to-overhaul-indigent-legalservices/ (accessed August 30, 2023). 

20 Samantha Hogan, “Justice rejects settlement to overhaul indigent defense in Maine.” The Maine Monitor,

September 13, 2023. https://themainemonitor.org/justice-rejects-settlement-to-overhaul-indigent-defense-in-maine/). 

(accessed September 14, 2023).

21 “Maine Lawmakers Must Act to Guarantee Constitutional Right to Speedy Trial,” ACLU Maine, April 5, 2023, 

https://www.aclumaine.org/en/press-releases/maine-lawmakers-must-act-guarantee-constitutional-right-speedy-trial

(accessed July 31, 2023); 15 M.R.S.A §§1491-1493. 
6

lawyers, at the cost of a little less than $1 million.22 However, according to then executive 

director of MCILS, this is “not a solution, it’s a patch” and an estimated $51 million is needed to 

open public defender offices in all 16 counties in Maine.23 Without adequate funding and clear 

guidelines for MCILS, it is possible that indigent defendants may receive subpar legal 

representation compared to those who can afford an attorney. Because of potential subpar legal 

representation, indigent legal defendants may face the possibility of losing their liberties, which 

may result in barriers such as in obtaining housing and employment, that often follows a criminal 

conviction.24 Due to these reasons, the Committee sought to investigate if the lack of proper 

defense in Maine for its indigent population is a denial of equal protection of the laws under the 

Constitution and in the administration of justice.

Methodology

As a matter of historical precedent, and in order to achieve transparency, Committee studies

involve a collection of public, testimonial evidence and written comments from individuals

directly impacted by the civil rights topic at hand; researchers and experts that have rigorously

studied and reported on the topic; community organizations and advocates representing a broad

range of backgrounds and perspectives related to the topic; and government officials tasked with

related policy decisions and the administration of those policies.

Committee studies require Committee members to utilize their expertise in selecting a sample of 

panelists that is the most useful to the purposes of the study and will result in a broad and diverse 

understanding of the issue. This method of (non-probability) judgment sampling requires 

Committee members to draw from their own experiences, knowledge, opinions, and views to 

gain understanding of the issue and possible policy solutions. Committees are composed of 

volunteer professionals that are familiar with civil rights issues in their state or territory. 

Members represent a variety of political viewpoints, occupations, races, ages, and gender 

identities, as well as a variety of backgrounds, skills, and experiences. The intentional diversity 

of each Committee promotes vigorous debate and full exploration of the issues. It also serves to 

assist in offsetting biases that can result in oversight of nuances in the testimony. 

In fulfillment of Committees’ responsibility to advise the Commission of civil rights matters in 

their locales, Committees conduct an in-depth review and thematic analysis of the testimony 

received and other data gathered throughout the course of their inquiry. Committee members use 

this publicly collected information, often from those directly impacted by the civil rights topic of 

study, or others with direct expert knowledge of such matters, to identify findings and 

22 Samantha Hogan. “Lawmakers Approve Funding to Hire Maine’s First Public Defenders.” The Maine Monitor. 

April 25, 2022. https://www.themainemonitor.org/lawmakers-approve-funding-to-hire-maines-first-publicdefenders/ (accessed July 31, 2023). 

23 Ibid.

24 “ACLU of Maine Files Lawsuit Challenging Maine’s Inadequate Indigent Defense System,” ACLU Maine, 

March 1, 2022. https://www.aclumaine.org/en/press-releases/aclu-maine-files-lawsuit-challenging-mainesinadequate-indigent-defense-system (accessed July 31, 2023).
7

recommendations to report to the Commission. Drafts of the Committee’s report are publicly 

available and shared with panelists and other contributors to ensure that their testimony was 

accurately captured. Reports are also shared with affected agencies to request for clarification 

regarding allegations noted in testimony. 

For the purposes of this study, Findings are defined as what the testimony and other data 

suggested, revealed, or indicated based upon the data collected by the Committee. Findings refer 

to a synthesis of observations confirmed by majority vote of members, rather than conclusions 

drawn by any one member. Recommendations are specific actions or proposed policy 

interventions intended to address or alleviate the civil rights concerns raised in the related 

finding(s). Where findings indicate a lack of sufficient knowledge or available data to fully 

understand the civil rights issues at hand, recommendations may also target specific directed 

areas in need of further, more rigorous study. Recommendations are directed to the Commission; 

they request that the Commission itself take a specific action, or that the Commission forward 

recommendations to other federal or state agencies, policy makers, or stakeholders. 

Findings

In keeping with their duty to inform the Commission of (1) matters related to discrimination or a

denial of equal protection of the laws; and (2) matters of mutual concern in the preparation of

reports of the Commission to the President and the Congress,25 the Maine Advisory Committee

submits the following findings to the Commission regarding indigent legal services in Maine.

This report seeks to highlight the most salient civil rights themes as they emerged from the

Committee’s inquiry. The complete meeting transcripts and written testimony received are

included in Appendix A for further reference.

Finding I: Maine’s indigent public defense system is underfunded and unable to meet the 

state’s current legal representation demands for indigent clients. 26

A Stuck and Underfunded System

A lack of sufficient funding, structure, and administrative support negatively impacts those 

providing and receiving indigent legal services in Maine.27 Sarah E. Branch, director of the 

25 45 C.F.R. § 703.2 

26 Branch Testimony, December 15, 2022 Briefing, p. 6; Nadeau Testimony, October 20, 2022 Briefing, p. 5; 

Andrus Testimony, November 15, 2022 Briefing, p. 4; Nadeau Testimony, October 20, 2022 Briefing, p. 5; Andrus 

Testimony, November 15, 2022 Briefing, pp. 3-4; Anderson Testimony, October 20, 2022 Briefing, p. 17; Keim 

Testimony, December 15, 2022 Briefing, p. 5. 

27 Nadeau Testimony, October 20, 2022 Briefing, p. 6.
8

Youth Justice Clinic and visiting professor at the University of Maine School of Law, speaking 

in a personal capacity, described Maine’s current criminal justice system as chronically 

underfunded and limited.28 Tina Nadeau, executive director of the Maine Association of 

Criminal Defense Lawyers, testifying in a personal capacity, shared that alongside a lack of 

funding for current public defense services, there is low motivation for political change to create 

a centralized or hybrid public defense system that is adequately funded.

29 Panelists shared that 

insufficient funding is largely due to a lack of political will to enact necessary legislation and 

provide adequate funding.30 Justin Andrus, executive director of MCILS at the time of the 

Committee’s study, stressed that the lack of political will to address necessary changes results in 

a criminal justice system that relies on far too few attorneys to provide constitutionally mandated 

services.31 Over 400 rostered attorneys that were providing indigent legal services in Maine are 

down to 190, and only about 140 of those are taking cases as of December 2022.32 

A Design Never Intended to Support the Current Justice System

Mr. Andrus shared that Maine’s current criminal justice system was not designed to meet current 

demands; therefore, it perpetuates an outdated system with limited capacity.33 The original 

function of Maine’s indigent legal services relied on a group of attorneys assigned by the state.34

The current demand for indigent services far outweighs the capacity of available attorneys. 

Without a legal system that can adapt to the changing needs of its population, the state is often 

excluding those with lower incomes from receiving quality legal representation.35

A Hybrid Public Defense System Consisting of Private and Public Defenders

The current system in Maine consists of a combination of public defender employees and private

attorneys. Ms. Nadeau testified that the upside to the current system is to preserve attorney

independence, flexibility, and choice between retained and appointed cases.36

To improve the system of criminal defense, Prof. Branch testified that input should be sought

from those who use indigent legal services, from legislators, from those who control the funding,

from the courts, and from Maine’s law school.37

28 Branch Testimony, December 15, 2022 Briefing, p. 6.

29 Nadeau Testimony, October 20, 2022 Briefing, p. 5; Andrus Testimony, November 15, 2022 Briefing, p. 4.

30 Ibid.

31 Andrus Testimony, November 15, 2022 Briefing, p. 4.

32 Keim Testimony, December 15, 2022 Briefing, p. 3.

33 Andrus Testimony, November 15, 2022 Briefing, p. 3.

34 Ibid. 

35 Anderson Testimony, October 20, 2022 Briefing, p. 17; Keim Testimony, December 15, 2022 Briefing, p. 5.

36 Nadeau Testimony, October 20, 2022 Briefing, p. 4.

37 Branch Testimony, December 15, 2022 Briefing, p. 15.
9

Ms. Nadeau testified that an increase in funding for private attorneys would give those attorneys

more flexibility in their schedule and allow them to take more cases.38 Mr. Andrus testified in

support of a hybrid system:

I believe, from my position as executive director, that a hybrid

system relying on both employee defenders and assigned defenders

who are present in every district, with a district defender who has

the same sorts of authorities and influences and access to the courts

as a district defender, is absolutely necessary to allow us to evolve

to a place where we’re able to ensure not only that an individual

client gets an attorney and that the attorney provides good service,

but that all of that is happening in the context of a system where

there is parity in the political dynamic and allows that indigent

defense system to support defendants, practitioners, parents and

child protective cases....39

Finding II: People of color, individuals with disabilities, and non-English speakers are 

disproportionately impacted by Maine’s current system for providing indigent legal 

defense.40

According to Mr. Andrus, those who are in federally protected classes are most likely to be 

disproportionately impacted by the lack of quality and capacity of indigent legal services in 

Maine.41 Wendy Allen, an advocate with Restorative Justice Institute with personal experience 

with Maine’s public defense system, testified that in her experience, people who are historically 

marginalized often cannot pay for lawyers, and they are in turn assigned to court appointed 

attorneys that are overburdened with heavy caseloads.

42

Professor Branch highlighted the connection for the Committee, noting, “nationally, individuals 

of color and individuals with disabilities are disproportionately represented in the justice system. 

By the data alone, that's not up for debate. It is therefore safe to assume that in Maine those same 

individuals are impacted by the way we deliver justice here in our state.”43

Ms. Nadeau remarked that in her own work, she saw a disproportionately high number of clients 

who were Black, immigrants, youth, survivors of trauma, or individuals who were struggling 

38 Nadeau Testimony, October 20, 2022 Briefing, pp. 4-5.

39 Andrus Testimony, November 15, 2022 Briefing, p. 4.

40 Andrus Testimony, November 15, 2022 Briefing, pp. 4-5, 7; Nadeau Testimony, October 20, 2022 Briefing, p. 7; 

Davis Testimony, November 15, 2022 Briefing, pp. 10, 13; Branch Testimony, December 15, 2022 Briefing, pp. 7-8; 

Allen Testimony, October 20, 2022 Briefing, p. 13; Anderson Testimony, October 20, 2022 Briefing, p. 15.

41 Andrus Testimony, November 15, 2022 Briefing, pp. 4-5.

42 Allen Testimony, October 20, 2022 Briefing, p. 13.

43 Branch Testimony, December 15, 2022 Briefing, p. 7.
10

with disabilities, mental health, or substance use.44 She said “[t]his is purely

anecdotal, because the Judiciary DA’s Office and the Commission are terrible at data keeping

around these issues...we need data.”45 Professor Branch noted her particular concern for youth 

and adults with mental health diagnoses who are charged with a crime, as their cases require the 

time and attention that attorneys currently providing indigent defense simply do not have.46

Disproportionate Representation of and Disproportionate Impact for People of Color 

People of color are disproportionately represented in the justice system and are therefore 

disproportionately impacted by Maine’s lack of effective and meaningful public defense.

Zachary Heiden, chief counsel for the American Civil Liberties Union of Maine, shared 

testimony with the Committee regarding the right to counsel for indigent individuals.47 He noted 

that in March 2022, the ACLU of Maine filed a lawsuit against the State of Maine and MCILS 

for its failure in complying with constitutional obligations to provide effective counsel to 

indigent individuals.48 In his testimony, Mr. Heiden discussed the disproportional impacts on 

people of color through the Powell v. Alabama case,

49 where nine Black men were denied the 

right to counsel and sentenced to death after being accused of rape by two White women. The 

Supreme court later ruled they did not receive due process and fair representation; therefore, 

creating law requiring states to provide counsel.50

Melissa Davis, professor and director of the Criminal Practice Clinic at the University of New 

Hampshire Franklin Pierce School of Law, discussed overrepresentation of people of color in the 

justice system.

51 Professor Davis highlighted that many statistics struggle to track the 

representation of people of color, and that it would be worth tracking since communities of color 

continue to be disproportionately represented in and affected by the administration of justice.52

Marion Anderson, an advocate with the National Council for Incarcerated and Formerly 

Incarcerated Women and Girls who has direct experience with Maine’s public defense system,

stated that in their opinion, Maine’s current criminal system ensures social control and 

oppression, especially in the marginalization of Black and Brown people.53

Professor Davis noted that the more an individual has contact with the criminal justice system, 

particularly people of color who are disproportionately more impacted, the lower their future 

44 Nadeau Testimony, October 20, 2022 Briefing, p. 7.

45 Ibid. 

46 Branch Testimony, December 15, 2022 Briefing, p. 8.

47 Heiden Testimony, October 20, 2022 Briefing, p. 8.

48 Ibid. 

49 Powell v. Alabama, 287 U.S. 45 (1932)

50 Heiden Testimony, October 20, 2022 Briefing, p 10-11.

51 Davis Testimony, November 15, 2022 Briefing, p. 10.

52 Ibid. 

53 Anderson Testimony, October 20, 2022 Briefing, p. 15.
11

earning potential will be.54 This earning potential impacts an individual’s ability to provide for 

themselves and their own long-term wealth.55 Mr. Andrus emphasized concerns he has around 

what he perceives as institutionalized racism in charging and bail decisions for men of color: 

It's couched in terms of people being from away and being flight 

risks. But the reality is that if you're a person of color, especially a 

man of color, charged with a crime in Maine, you're much more 

likely to have a high bail or no bail, and you're much more likely to 

face a State wishing to prosecute you for top-level offenses on 

indictment, or to face, at least in my experience, greater prison 

times.56

Inadequate Representation for Individuals with Disabilities

Individuals with disabilities are severely impacted by a lack of appropriate time and attention to 

their cases.57 Nationally, clients with disabilities are more likely to be overrepresented in the 

justice system.58 Professor Davis testified to the Committee that nationally, 38% of those who 

are currently incarcerated have at least one disability.59 Professor Branch stated a client’s 

disability may manifest more intensely while incarcerated, and could impact their understanding 

of why they are incarcerated and hinder their ability to receive treatment: “I have represented 

individuals whose disability has meant that they do not even know why they're in jail. They are 

terrified. Their disabilities are manifesting in the extreme while they're held in these cells.”60 Ms. 

Nadeau testified that “...incarceration is the most extreme de-stabilizer for my clients. It can 

completely derail their lives...[w]ithout counsel being promptly appointed, clients are not able to 

get back in court and fight for release on bail.”61

Access to Quality Representation for Non-English Speakers is Hard

Language barriers impact access to quality services and representation. Mr. Andrus highlighted 

that protected classes with language barriers often struggle to access social service resources 

which may play a role in criminal charge outcomes.62 Mitigative services more specifically are 

less likely to be available and accessible to those with language barriers.63 Mr. Andrus discussed 

54 Davis Testimony, November 15, 2022 Briefing, p. 13.

55 Ibid. 

56 Andrus Testimony, November 15, 2022 Briefing, p. 5.

57 Andrus Testimony, November 15, 2022 Briefing, p. 5; Branch Testimony, December 15, 2022 Briefing, p. 7; 

Davis Testimony, November 15, 2022 Briefing, p. 10.

58 Branch Testimony, December 15, 2022 Briefing, p. 7.

59 Davis Testimony, November 15, 2022 Briefing, p. 10.

60 Branch Testimony, December 15, 2022 Briefing, p. 7.

61 Nadeau Testimony, October 20, 2022 Briefing, p. 7.

62 Andrus Testimony, November 15, 2022 Briefing, p. 5.

63 Ibid.
12

that it is the duty of the defense counsel to accommodate clients, regardless of whether they have 

language challenges or other barriers.64

Finding III: Attorneys assigned as public defenders need the same resources as prosecutors 

in order to effectively and meaningfully represent their indigent criminal defendants.

65

Public defense attorneys are not provided with technical knowledge or financial resources in the 

same manner as prosecutors, putting their clients at risk of sub-par representation.66 Eligibility to 

become an attorney who accepts indigent clients mainly involves watching a six-hour training 

video on minimal standards, a bar card, and an email address.67

Attorneys who are assigned as public defenders in Maine do not usually receive salaries, paid 

holidays, sick days, health insurance, or other benefits to support their full attention towards 

obtaining appropriate training and devoting substantial time to cases.

68 None of the overhead 

costs incurred by court appointed counsel is covered, unlike for state prosecutors.69 Payment for 

their work is dependent on the number of cases closed and the amount of time spent on each 

case.70 Mr. Heiden, Ms. Nadeau, and Professor Branch highlighted that the unequal financial 

burden for public defense attorneys is significant and should not be overlooked.

71

Defining Parity

Professor Branch testified that currently in Maine, there is a lack of parity between the resources 

available to public defense and those available to the prosecutors, creating disparities that are 

affecting defense representation.

72 Several factors in the current system lead to these disparities 

in resources. In addition to receiving funds from the state, prosecutors also receive funds from 

their respective counties; the MCILS receives only state funding.73 Moreover, the MCILS must 

budget to provide representation for a wider array of indigent legal services than county 

prosecutors: the MCILS not only provides indigent legal services for criminal defendants 

(including juvenile defendants), but it also provides counsel for children and parents in protective 

64 Andrus Testimony, November 15, 2022 Briefing, p. 7.

65 Andrus Testimony, November 15, 2022 Briefing, pp. 1, 16-17; Branch Testimony, December 15, 2022 Briefing, 

pp. 6, 9; Maloney Testimony, November 15, 2022 Briefing, p. 15; Nadeau Testimony, October 20, 2022 Briefing, 

pp. 3-4. 

66 Heiden Testimony, October 20, 2022 Briefing, p. 18; Nadeau Testimony, October 20, 2022 Briefing, pp. 3-4, 18; 

Branch Testimony, December 15, 2022 Briefing, p. 14; Andrus Testimony, November 15, 2022 Briefing, p. 21. 

67 Nadeau Testimony, October 20, 2022 Briefing, p. 4.

68 Ibid., 3.

69 Ibid., pp.3- 4.

70 Ibid., p. 4.

71 Heiden Testimony, October 20, 2022 Briefing, p. 18; Nadeau Testimony, October 20, 2022 Briefing, pp. 3-4; 

Branch Testimony, December 15, 2022 Briefing, p. 14. 

72 Branch Testimony, December 15, 2022 Briefing, p. 6.

73 Ibid., p. 9.
13

custody cases, patients in involuntary (civil) commitment cases, and defendants in other civil 

cases, representation for which MCILS has to budget.74 Thus, a comparison of funding does not 

capture these variables. Maeghan Maloney, district attorney for Maine’s Kennebec and Somerset 

Counties, described the need for parallel numbers of positions, similar salaries, trainings, and 

benefits for public defenders and prosecutors in order to achieve parity between the two roles. 75

Mr. Andrus described parity at its most basic level as matching public defense resources to that 

of a prosecutor’s office.76 He highlighted the implications of what true parity means for the 

Committee, noting it starts with standing and respect for the defense function.

77 Robert Ruffner, 

an attorney who started the Maine Indigent Defense Center specifically to speak on the issue of 

public defense for the indigent, highlighted that the lack of anyone serving specifically as a 

public defender leads to an absence in representing the defense perspective and role in policymaking decisions within the state.78 He shared that Vermont’s Defender General was able to 

advocate successfully for raising the age of majority for when an individual would be prosecuted 

in adult vs. juvenile court, as an example of what can result from having a seat in developing and 

informing policy.79

The structure, support, caseload number and training of public defense attorneys needs to 

completely change beyond just financial resources to achieve true parity.80 Mr. Andrus stated:

I think the most important thing to recognize when we're talking 

about parity is that numerical equality does not constitute equity. 

And the reality is that parity means much, much, much more than 

budget and head count. But I'll turn to that in a moment. Parity starts 

with standing. It starts with respect for the defense function. It starts 

with authority in the defense function equivalent to that of the 

prosecution function. It starts with statutory inclusion in every 

commission, in every arena in which the Office of the Attorney 

General has statutory inclusion, and starts with the seats on the 

Criminal Rules Advisory Committee. We're talking about criminal 

74 Title 4 M.R.S.A. §1802(4) defines “indigent legal services” as legal representation provided to: “A. An indigent 

defendant in a criminal case in which the United States Constitution or the Constitution of Maine or federal or state 

law requires that the State provide representation; B. An indigent party in a civil case in which the United States 

Constitution or the Constitution of Maine or federal or state law requires that the State provide representation; 

C. Juvenile defendants; and D. An indigent defendant or party or a juvenile for the purpose of filing, on behalf of 

that indigent defendant or party or juvenile, a petition for certiorari to the Supreme Court of the United States from 

an adverse decision of the Law Court on a case for which services were previously provided to that defendant or 

party or juvenile pursuant to paragraph A, B or C.”

75Maloney Testimony, November 15, 2022 Briefing, p. 15; Nadeau Testimony, October 20, 2022 Briefing, pp. 3-4.

76 Andrus Testimony, November 15, 2022 Briefing, p. 16.

77 Ibid. 

78 Ruffner Testimony November 15, 2022 Briefing, p. 26.

79 Ibid., pp. 26-27.

80 Branch Testimony, December 15, 2022 Briefing, p. 9; Andrus Testimony, November 15, 2022 Briefing, pp. 1, 17.
14

stuff here, but also the Civil Rules Advisory Committee, because it 

impacts the civil folks we represent. 

It starts with a seat on the Board of Overseers, because the rules of 

professional conduct, for example, constrain my ability to oversee 

the provision of adequate services. It starts with a permanent seat in 

the Criminal Rules Advisory Commission. It starts with seats at 

every table where a prosecutor is welcome....Prosecutors can 

eliminate all the cases they want on any given day. Tying defense 

caseloads to a number that is within the control of the prosecution 

to determine, I think, doesn't get you to a place of parity.81

Balance in the Criminal Justice System

Lisa Keim, Maine State Senator and formerly the chair of the Joint Standing Committee on 

Judiciary, stated that an increase in defense payment is one way to provide balance in the 

criminal justice system.

82 Professor Branch also testified that “the core aspect of the justice 

system, for it to function properly, is in fact an adversarial process.”

83 Assigning defendants to 

attorneys with high caseloads or who are under-compensated is like “sending unarmed 

individuals into a ring to fight against gladiators.”

84 She went on to say, “[p]arity is more 

complicated than mere money...it’s about the quality of that representation, the structure, the 

support, the training.”

85

 

Lack of Incentives to Become Public Defenders in Maine

Nat Jordan, a law student at the University of Michigan originally from Maine, joined a 

Committee briefing to share testimony regarding challenges facing law students wanting to enter 

public defense as a profession.

86 He shared that he would like to return to Maine and pursue a 

career as a public defender for indigent clients in the state, however, under Maine’s current 

system he would be ineligible for public service loan forgiveness:87

Law schools are becoming more and more expensive. I personally 

will graduate with probably over $150,000 in debt, so I can't make 

moving back to Maine work because I plan to depend on something 

called Public Service Loan Forgiveness, or PSLF. For those who

don't know, PSLF is a federal government program that forgives 

student loans after a person works in public service for 10 years. 

81 Andrus Testimony, November 15, 2022 Briefing, pp. 16-17. 

82 Keim Testimony, December 15, 2022 Briefing, p. 3.

83 Branch Testimony, December 15, 2022 Briefing, p. 9.

84 Ibid.

85 Ibid.

86 Jordan Testimony, November 15, 2022 Briefing, pp. 27-28.

87 Ibid.
15

I'm in a group for future public defenders at my law school, and 

almost all of us plan to rely on Public Service Loan Forgiveness, 

that is, we will only ever pay a small portion of our giant student 

loan balance because the federal government will forgive the 

balance of our loans after 10 years in public service. But the key 

problem for me as a law student who wants to move back to Maine 

is that, as I understand it, PSLF only applies to government and nonprofit jobs. Under the current system, if I was to become a court 

appointed attorney and contract for the government, that wouldn't 

be covered under PSLF, so my loans would not be forgivable.

Finding IV: There is greater need for indigent representation than there are attorneys 

available in Maine.88

Public defenders must choose between their goals of supporting indigent clients and the reality of 

being in an overworked and overburdened system.89 Professor Branch stated that although 

defense attorneys may enter the public defense profession wanting to do good work for indigent 

clients in a functional justice system, current caseload demands are demoralizing.90 Public 

defenders are put in the position of choosing more efficient case options to lighten their caseload 

over prioritizing the needs of the client.91 Ms. Allen highlighted that quality representation 

comes from attorneys collaborating with their clients, not from choosing the most efficient plea 

to lighten their caseload.92

Cases are increasing at a faster rate than available attorneys.93 Senator Keim shared that despite 

the increase in cases, the number of attorneys has dropped from 400 to only 140 attorneys who 

are taking on active cases.94 The current available attorneys cannot meet the current demand of 

cases.95 With attorneys deciding to leave the field of public defense, the burden of the caseload 

falls heavily on the remaining attorneys, leading to an increased rate of burnout.96

Caseload standards need to be updated with national standards in mind.97 Mr. Heiden discussed 

the importance of monitoring the number of cases an attorney has and comparing it against other 

88 Branch Testimony, December 15, 2022 Briefing, pp. 7-9; Allen Testimony, October 20, 2022 Briefing, p. 14;

Keim Testimony, December 15, 2022 Briefing, p. 3; Heiden Testimony, October 20, 2022 Briefing, pp. 10, 19; 

Nadeau Testimony, November 15, 2022 Briefing, p. 28. 

89 Branch Testimony, December 15, 2022 Briefing, p. 7.

90 Ibid.

91 Ibid.

92 Allen Testimony, October 20, 2022, Briefing, p. 14.

93 Keim Testimony, December 15, 2022 Briefing, p. 3.

94 Ibid.

95 Branch Testimony, December 15, 2022 Briefing, p. 8.

96 Ibid., p. 9.

97 Heiden Testimony, October 20, 2022 Briefing, p. 19.
16

states’ caseload standards in order to find appropriate caseload goals.98 Currently the state of 

Maine is using caseload standards established from the 1970s.99 These state standards also do not 

represent the impacts of COVID-19 which increased caseloads to 60% higher levels than prepandemic times.100

Mr. Andrus shared context on what is impacting the situation:

First, I have to say that I don't like to talk about a deficit of attorneys, 

because it implies that that default lies on the attorney's side. It is an 

imbalance, and a lot of it can be resolved with prosecutorial 

discretions and filings or other things. But putting that aside, in 

March of 2019...there were 410 attorneys accepting assignments in 

Maine. ...Last Thursday, there were 165. During that same period, 

the rate of new filings and new assignments we are required to help 

make has gone through the roof. The five-year historical average 

prior to the pandemic was 26,600 cases a year. That's criminal, child 

protective, mental health, juvenile. Some ones that are relatively 

small in account, like emancipation.

In fiscal year '21, that number was up to 28,000-and-a-half. In fiscal 

year '22, that number was almost 32,000. In fiscal year '[2]3, we're 

running, at the moment, at about a 32, 33,000-case-a-year rolling 

limit. We've seen it as high 35,000 annualized two weeks ago. Of 

course, it is really not just the overall count that matters, but rather 

also the rate at which we need to staff cases.... So we've seen a 

dramatic, dramatic decrease in the number of attorneys who are 

willing to subjugate their personal and professional lives to vitiate 

the state's ... obligation, without the support of the state to say to 

these attorneys, "please keep doing it," while the state itself 

continues to boost the number of cases being charged, and the rate 

at which cases are being cleared is not anywhere near what it needs 

to be in order to address that.101

Mr. Andrus also stressed that the Committee understand that the process for assigning clients 

typically depends on the court first making a determination regarding indigency, then reaching 

out to MCILS to make an assignment.

102 However, the court does not always have the resources 

necessary to make those assignments, leading to delays.103 He noted that delays in assignment to 

98 Ibid.

99 Ibid.

100 Nadeau Testimony, November 15, 2022 Briefing, p. 28.

101 Andrus Testimony, November 15, 2022 Briefing, pp. 22-23. 

102 Ibid., p. 21. 

103 Ibid.
17

attorneys would be decreased by allowing MCILS access to data immediately when someone 

who might need indigent defense enters the criminal justice system.104

Weakening the Sixth Amendment

Professor Branch cautions against weakening the Sixth Amendment as a solution to providing

representation: “I am going to beg the people who are making the decisions to not answer our

current challenges by watering down the Sixth Amendment...We need to lower barriers to

representation but not the quality of that representation.”

105 Mr. Heiden testified that the Sixth 

Amendment not only enforces the right to counsel, but ensures the right to assistance through 

counsel.

106 If a lawyer is getting in the way of assistance, they are going against the Sixth 

Amendment.

107

Finding V: Justice is often delayed for those receiving indigent legal services because the 

parameters for determining indigency are not clear and consistent.

108 This results in lifealtering consequences.

The current parameters for determining indigency and partial indigency should be streamlined, 

updated, and made clear, consistent, and uniform, which in turn would expedite assignment of 

attorneys.

Mr. Andrus noted that the court determines indigency in most cases, although MCILS can 

occasionally make a direct assignment of an attorney to a client if they determine the client is 

indigent.109 He shared the following information in explaining how indigency is determined:

We have indigent and partially-indigent. Indigent is related to the 

federal poverty rate, and I think it's 110% at the moment, and then 

there's a very low cash component that somebody can have. Really, 

that should look more like social security disability or some other 

more generally-accepted provision. Also, it should be the case that 

if somebody qualifies for a means-tested benefits program, they 

don't need to be further screened. That's repeating work [that] 

doesn't need to be done.

104 Andrus Testimony, November 15, 2022 Briefing, p. 21. 

105 Branch Testimony, December 15, 2022 Briefing, p. 10.

106 Heiden Testimony, October 20, 2022 Briefing, p.10.

107 Ibid.

108 Keim Testimony, December 15, 2022 Briefing, p. 15; Allen Testimony, October 20, 2022 Briefing, p. 14; Nadeau 

Testimony, October 20, 2022 Briefing, p. 8; Branch Testimony, December 15, 2022 Briefing, p. 6; Andrus 

Testimony, November 15, 2022 Briefing, p. 6. 

109 Andrus Testimony, November 15, 2022 Briefing, p. 21. 
18

Partially-indigent means that a judge has decided that the person 

doesn't have the present ability to retain counsel. Some judges set 

that ceiling very low. Some people set [it] very high. I've seen people 

with very large incomes, but not a lot of money in the bank, who are 

stuck in jail, qualify. That's probably right. Then I've seen other 

people who I thought would qualify, not qualify. So I think that 

establishing some real parameters around what does partiallyindigent mean and who qualifies for that would be appropriate, in 

addition to raising the actual indigency level.110

If the court does not have the proper resources to determine indigency, there will be delays in 

assigning an attorney to an indigent client.111 When assignments are made and attorneys are 

pushed beyond their limits, the client’s representation is impacted.112

Effective and meaningful representation for indigent individuals is not a state priority.

Senator Keim shared that the required urgency of providing effective and meaningful defense is 

not widely shared among Maine’s legislators, meaning that justice is not only delayed but often 

denied while people wait in jail or receive low quality representation.113 Ms. Allen reflected on 

the impact of delayed justice as she waited for representation in prison. Days spent waiting for an 

attorney influenced her ability to be with family, keep her housing, and even impacted Ms. 

Allen’s sense of self.114 Ms. Nadeau remarks that if clients are not advised well, they may be 

forfeiting their own rights within the justice system.115 There are current delays in processing 

cases due to a lack of attorneys, and COVID-19 has added another layer of setback within the 

system.116 Mr. Andrus suggested that centralizing indigent services may help in getting clients 

better access and identify resources.117

The Court System is Backlogged

Senator Keim testified, “you can’t just look at indigent legal services in Maine and not consider 

that it’s part of a broader system, which is the court system. Terribly backlogged, a lot of 

difficulty there with scheduling.”

118 Professor Branch echoed the statements of Chief Justice of

the Maine Supreme Judicial Court Valerie Stanfill, that Maine essentially has a convergence of a 

perfect storm of three things: a chronically underfunded justice system, the COVID-19 

110 Andrus Testimony, November 15, 2022 Briefing, p. 22.

111 Ibid. p. 21.

112 Nadeau Testimony, October 20, 2022 Briefing, p. 18.

113 Keim Testimony, December 15, 2022 Briefing, p. 15.

114 Allen Testimony, October 20, 2022 Briefing, p. 14.

115 Nadeau Testimony, October 20, 2022 Briefing, p. 8.

116 Branch Testimony, December 15, 2022 Briefing, p. 6.

117 Andrus Testimony, November 15, 2022 Briefing, p. 6.

118 Keim Testimony, December 15, 2022 Briefing, p. 3.
19

pandemic, and the state’s inability to find enough qualified attorneys to appoint to individuals 

accused of crimes.

119 Senator Keim stated, “justice delayed is justice denied.”120

 

Finding VI: Low-quality representation impacts case outcomes for indigent clients.121

Ms. Nadeau remarked about the power dynamic between attorneys and clients and how a client’s 

access to representation falls solely in the hands of the attorney and their capacity to provide 

high-quality representation.122 Without the security of salary, benefits, services, mentorship, and 

resources, it is hard to determine the quality of representation a client may receive from an 

attorney.

123 Quality representation should not be affected by attorneys’ caseloads or their abilities 

to represent criminal defendants.

124

Appropriate and effective representation of clients is not possible when attorneys are 

overburdened. 

Attorneys with the capacity to take on new cases and to properly collaborate with their clients 

would provide better representation, which in turn may reduce incarceration rates.125 Poor quality 

legal representation can lead to clients being misinformed about their rights, or taking plea deals 

they later regret.126

Ms. Allen reflected on the legal representation she received and questioned that maybe if she had 

the financial means to pay for her own lawyer, her outcome would have been different.127 Ms. 

Allen stated that taking a plea deal came from a place of intimidation and fear:128

I sat in jail for almost nine months waiting for court, which kept 

getting continued. I didn't get to meet with my lawyer until the day 

before court. During that time, going over the case in less than an 

hour, a lot of talk was about plea deals. "Well, plea out. You have a 

criminal history. They're going to nail you with double of what 

they're asking for." Although I had ample evidence that I wasn't at 

the place that they said I was at during this alleged incident, I wanted 

to take it to trial. 

119 Branch Testimony, December 15, 2022 Briefing, p. 6-7.

120 Keim Testimony, December 15, 2022 Briefing, p. 15, echoing Dr. Martin Luther King Jr.’s “Letter from a 

Birmingham Jail” in which he states, “justice too long delayed is justice denied.”

121 Nadeau Testimony, November 15, 2022 Briefing, p. 28; Nadeau Testimony, October 20, 2022 Briefing, pp. 3, 5-

6, 8, 18; Allen Testimony, October 20, 2022, Briefing, p. 14; Davis Testimony, November 15, 2022 Briefing, p. 10. 

122 Nadeau Testimony, November 15, 2022 Briefing, p. 28.

123 Ibid., pp. 3, 6.

124 Ibid., p. 5.

125 Allen Testimony, October 20, 2022, Briefing, p. 14.

126 Nadeau Testimony, October 20, 2022 Briefing, p. 8.

127 Allen Testimony, October 20, 2022 Briefing, pp. 13-14.

128 Ibid.
20

But I almost felt forced to take a plea deal because I had a criminal 

history. So, it was instilled by fear, which happens to a lot of courtappointed representation. People that can't afford to pay lawyers, 

people that are minorities and are more or less have to go with the 

court-appointed attorneys, I feel a lot of times the attorneys are 

overloaded with cases, and so they don't put their whole heart into 

representing their clients....So, I sat in prison for six years, taking a 

plea deal, having to admit something that I wasn't guilty for. Had I 

been able to pay for a lawyer or maybe a public defender, where 

they are committed to working for their client, maybe things 

would've turned out a little bit different for me.129

Indigent individuals who do receive legal representation have very little control over the quality 

of their representation.

130

Senator Keim discussed the importance of recognizing client autonomy over their access to 

quality representation and decision making regardless of their income.131 She testified that it is 

important for defendants to have some choice and more say in how they are being defended:

132

So that's one plug I put in there as you consider things is that you 

think about the bias that's built into the system of an assumption that 

these people, because they're low income and accused of a crime, 

that somehow they are not capable of making sound decisions on 

what their defense looks like or how could we introduce into our 

systems, in the state of Maine or across the United States where we 

are respecting people more and trying to give them a greater choice 

and advocacy over their own situation. I feel like we could have 

good outcomes for people if they were respected more through the 

process.

133

Assigning attorneys without proper communication by the state throughout the process may send 

a message that clients are unable to make decisions in their own best interests.134 Ms. Nadeau 

articulated that in the current system, a client’s autonomy in making decisions is often based on 

luck and whether they happen to be assigned to a qualified attorney.135

The impacts of delayed or poor-quality representation are far reaching and lifelong.

129 Allen Testimony, October 20, 2022 Briefing, p. 13.

130 Keim Testimony, December 15, 2022 Briefing, p. 5; Branch Testimony, December 15, 2022 Briefing, p. 8; 

Nadeau Testimony, October 20, 2022 Briefing, p. 5; Allen Testimony, October 20, 2022 Briefing, p. 13; Anderson 

Testimony, October 20, 2022 Briefing, p. 16. 

131 Keim Testimony, December 15, 2022 Briefing, p. 5.

132 Ibid.

133 Ibid.

134 Keim Testimony, December 15, 2022 Briefing, p. 5, Branch Testimony, December 15, 2022 Briefing, p. 8.

135 Nadeau Testimony, October 20, 2022 Briefing, p. 5.
21

Delayed or poor-quality representation may lead to unfair and unsupported convictions and to 

unjust or longer incarceration than warranted. Panelists described the lifelong impacts of 

deficient legal representation. Conviction history impacts a client far beyond the time they spend 

in jail.136 Ms. Allen shared the far-reaching impacts incarceration had on her family and personal 

life:

The court-appointed representation affects the clients in a lot of 

ways, especially sitting in jail. Every day you're sitting in jail, you 

are being pushed away from your family, the impacts that it has on 

your children.... I was unable to be there as a mother, but not only 

that. You walk out with your housing gone, your employment gone, 

everything gone. And then being almost misrepresented, your hope 

and your purpose gone as well.137

Mx. Anderson stated that fines and incarceration impacted their ability to pay for housing, 

employment, transportation, and education, and continues to affect them now:138

It impacts everything from housing to employment to families, 

transportation. And of course, coming out of jail or prison, you now 

have this label that follows you wherever you go....This system was 

created to perpetuate harm. And without proper funding for legal 

defense, that agenda becomes easier for the state. The [prosecution 

is] properly equipped with all of the things, as everyone before me 

has stated, all of the benefits, all of the pay, all of the resources, all 

of the support. And meanwhile, I'm lucky to see my attorney three 

times in seven months, six months that I was waiting to be sentenced 

for a crime that I didn't commit. And I think it is a disservice to the 

folks like me in the State of Maine to continue on a system that does 

not grant the same opportunity to those without money, that it grants 

to those with money and that's really what it boils down to.139

Finding VII: Poor representation harms a client’s ability to trust that their attorney will 

provide effective and meaningful representation.140

Trust and Case Outcomes 

136 Anderson Testimony, October 20, 2022 Briefing, p. 17.

137 Allen Testimony, October 20, 2022 Briefing, p. 14.

138 Anderson Testimony, October 20, 2022 Briefing, p. 17.

139 Ibid.

140 Davis Testimony, November 15, 2022 Briefing, p. 11; Andrus Testimony, November 15, 2022 Briefing, p. 7; 

Nadeau Testimony, November 15, 2022 Briefing, p. 28; Branch Testimony, December 15, 2022 Briefing, p. 16; 

Allen Testimony, October 20, 2022 Briefing, pp. 13-14; Anderson Testimony, October 20, 2022 Briefing, p. 17. 
22

Professor Davis highlighted the importance of a trusting relationship between an attorney and 

client throughout the court process. She advocated for vertical representation, where the same

lawyer would represent the client from start to finish.

141 A decision made by the attorney and 

client may have ramifications for which a client may have to abide, pay, or serve time in prison. 

Knowing a decision was carefully thought out and having an attorney willing to properly advise 

a client based on their individual needs may empower the client to make a well-informed 

decision.142

Trusting relationships not only help clients make better decisions, but they may also assist in 

resolving cases more quickly because clients may understand their options more clearly and 

spend less time questioning and delaying trials in court because of confusion.143 Mr. Andrus 

stated that understanding a client and their needs can assist in their overall current and future 

wellbeing.144 This understanding may help the attorneys look into the issues that led to 

criminality in the first place and provide services to assist their clients after they leave the court 

system to prevent recidivism.145

Ms. Nadeau testified that high-quality representation was based on trust. Clients feel very acutely

when they are not getting quality representation:

The trust in our current system, if ever any existed, has been

broken and I fear that is irrevocably broken. Our clients do 

not trust us to work for them, to try hard, to fight, to listen to them. 

And we have to work hard to convince them each time that we do 

care and that we do try. They know the system is against them and 

they think we are part of that system...without that foundation of 

trust and respect, how can we effectively connect with much less 

represent our clients?146

Power Dynamics Between Client and Attorney

Attorneys have the authority and knowledge to inform clients about case options and assist in 

determining a client’s potential sentencing.147 Professor Branch stressed the importance of 

including clients using indigent legal services and including those who are impacted by the 

current system to inform the Committee’s work.148 Not only does the attorney and client 

relationship impact access to resources and sentencing, it can also destroy a client’s sense of self 

141 Davis Testimony, November 15, 2022 Briefing, p. 11.

142 Ibid.

143 Ibid.

144 Andrus Testimony, November 15, 2022 Briefing, p. 7.

145 Ibid.

146 Nadeau Testimony, October 20, 2022 Briefing, p.7.

147 Ibid., p. 28.

148 Branch Testimony, December 15, 2022 Briefing, p. 16.
23

and hope furthering their distrust for those working in the system and the system itself.149 Mr. 

Andrus noted that attorneys need to accept clients as they are. This acceptance may allow 

attorneys to hear the needs of the client and have a candid conversation.150

Finding VIII: Public defenders need mentorship and supervision to provide effective and 

meaningful representation to their indigent clients.151

Influence of Mentorship and Supervision

Professor Davis informed the Committee that access to mentorship played a key role in forming 

a trusting relationship with clients.152 Mentors also help by providing feedback and training to 

attorneys in order to best support their clients.153 Supervisors provide support for the overall 

function of the office and help bring in committed counsel who will provide quality 

representation.154 Mr. Heiden testified to the Committee that there are too many lawyers in the 

current system who are failing to provide quality representation and should not be working on 

behalf of the public.155 When things go wrong in a case, which is common, there is nobody there 

to help them figure it out.156 Mentorship is needed among lawyers. In the current system, there is 

no ongoing supervision, mentorship, or training.

157 In order to provide high quality 

representation, defense attorneys need the same support of any other state office.158

Finding IX: There is disagreement between Maine prosecutors and criminal defense

attorneys’ positions regarding who is deciding, what criteria is being used to decide, and

which defendants get court-appointed counsel.

Prosecutors maintain that this determination is made strictly by law, and that they do not have

any discretion in this determination.159

Ms. Nadeau noted:

149 Allen Testimony, October 20, 2022 Briefing, p. 14.

150 Andrus Testimony, November 15, 2022 Briefing, p. 7.

151 Davis Testimony, November 15, 2022 Briefing, p. 12; Heiden Testimony, October 20, 2022 Briefing, p. 12; 

Nadeau Testimony, October 20, 2022 Briefing, p. 3; Maloney Testimony, November 15, 2022 Briefing, p. 8; Branch 

Testimony, December 15, 2022 Briefing, p 13.

152 Davis Testimony, November 15, 2022 Briefing, p. 12.

153 Heiden Testimony, October 20, 2022 Briefing, p. 12; Nadeau Testimony, October 20, 2022 Briefing, p. 3.

154 Maloney Testimony, November 15, 2022 Briefing, p. 8.

155 Heiden Testimony, October 20, 2022 Briefing, pp. 9, 12.

156 Ibid., p. 12.

157 Heiden Testimony, October 20, 2022 Briefing, pp. 9, 12.

158 Branch Testimony, December 15, 2022 Briefing, p. 13.

159 Nadeau Testimony, November 15, 2022 Briefing, p. 28.
24

[I]t isin the hands of prosecutors, largely, that people are determined

in the criminal realm to be eligible for court appointed counsel

because it is prosecutors who check a box or write on the complaint

whether they are seeking jail. Without that determination by

prosecutors, somebody does not qualify for court appointed

representation. These are criminal offenses. By their nature, there is

an inherent risk of jail. That's what makes them criminal. In Maine,

we've somehow delegated that initial authority to prosecutors to

determine who gets representation and who is left to the wolves, so

I think those two points needed to be clarified for the committee.160

Mr. Andrus shared that the process for determining indigency is generally in the hands of the

court, with indigency determinations sometimes coming at the discretion of a judge:

In almost all instances, the court makes that determination. We

[MCILS] do occasionally make a direct assignment. We're going to

have to make a couple of other decisions, but we make our own

determination. But in broad, you're correct. It happens with the

court. The numbers are up-to-date and accurate in that they're

correct under the existing schema, but they're not what they should

be, which is how I really hear the question.161

Defense counsel, on the other hand, contend that a comprehensive evaluation of an individual

defendants’ potential criminal charges and their criminal history are factors that are often ignored

in determining eligibility in court appointment; these factors may increase risk of incarceration

which, in turn, should dictate appointment of counsel.162

Guidance from the MCILS website states the following for the public in response to the

question: “How do I apply for a commission assigned attorney?”

The judge will decide if you are eligible for an attorney paid for by

the state based on your financial situation and based on the nature of

your case. At the court, you will have to fill out a motion for

assignment of counsel and a financial affidavit. This affidavit should

be filled out with the assistance of a MCILS Financial Screener if

your court has one. Then a judge will review your request. The judge

or the clerk will tell you whether or not you qualify and if you

qualify whether or not you will be ordered to repay some or all of

the attorney fees. If you do, the judge or the clerk will give you the

name of an attorney assigned to your case. It is possible, but

160 Ibid.

161 Andrus Testimony, November 15, 2022 Briefing, pp. 21-22.

162 Branch Testimony, December 15, 2022 Briefing, p. 7-8.
25

unlikely, that later on the Commission will decide that a different

attorney should represent you.163

Further, guidance on the MCILS website for attorneys includes the following response to

the question, “Who will decide if an individual is indigent and entitled to assigned

counsel?”

The court. Whether a person is indigent and whether the nature of

the case mandates that an indigent person receive representation at

state expense are generally issues of constitutional dimension that

are appropriately decided by the court. Accordingly, you should

advise clients seeking assigned counsel to file an application with

the court.164

Recommendations

Among their duties, advisory committees of the Commission are authorized to advise the Agency

(1) concerning matters related to discrimination or a denial of equal protection of the laws under 

the Constitution and the effect of the laws and policies of the Federal Government with respect to 

equal protection of the laws, and (2) upon matters of mutual concern in the preparation of reports 

of the Commission to the President and the Congress.165 In keeping with these responsibilities, 

and given the testimony heard on this topic, the Committee submits the following 

recommendations to the Commission:

The U.S. Commission on Civil Rights should issue the following recommendation to the

United States Department of Justice and Maine’s Congressional Delegation:

1. Request an investigation by the U.S. Department of Justice as to whether Maine is

providing effective and meaningful representation to indigent clients facing actual

incarceration.

The U.S. Commission on Civil Rights should issue the following recommendations to the

Maine Legislature’s leadership, the Committee on Judiciary, the Committee on

Appropriations and Financial Affairs, and the Legislative Budget Subcommittee; to

Governor Mills; to the Chief Justice of the Maine Supreme Judicial Court; and to the

Maine Commission on Indigent Legal Services:

163 “FAQs for the Public,” Maine Commission on Indigent Legal Services, accessed July 31, 2023, 

https://www.maine.gov/mcils/information_for_the_public/faq-public.

164 Ibid.

165 45 C.F.R. § 703.2 (2018).
26

2. Urge the Maine Legislature and Governor Mills to provide adequate funding to

indigent legal services for criminal defendants at the minimum recommended by

MCILS, which would promote parity between defense counsel and prosecutors.

Until the Maine legislature adequately funds Maine’s indigent legal defense

system, this issue will not be solved. 

3. Research appropriate ratios to balance the number of defense cases to the number of

cases per prosecutor by looking at other state examples and structures.

4. Develop a robust and well-structured hybrid public defender system, one that

includes public defenders as well as private attorneys, and one that incentivizes

attorneys to provide quality public defense services and is fully funded and wellstaffed with well-trained counsel which could ensure more effective representation

for clients.

5. Increase the number of criminal defense attorneys in order to reduce pressure on

defendants who may feel pressure to take plea deals when they have genuine

defenses and want to be heard in court. Workload and caseload standards should be

updated accordingly.

6. Urge the governor to appoint a task force of relevant stakeholders to meet and

create a system of public defense that has the capacity to provide effective and

meaningful defense to indigent clients that includes a process for ensuring and

monitoring that members of federally protected classes are not receiving delayed,

sub-par, or inadequate legal services. Ensure the taskforce includes at least one

member who is designated to represent public defense perspectives.

7. Allow individuals providing public defense services to qualify for student loan

forgiveness.

8. Fund and monitor a hybrid system in every prosecutorial district to ensure clients

are assigned an attorney in a timely manner and that the attorney provides effective

and meaningful counsel.

9. Develop a record keeping system by MCILS that provides updated data regarding

general indigent legal services and impacted federal protected classes in order to

keep attorneys accountable, to increase data collection, and to ensure quality

services are being provided for clients uniformly across the state. Provide a portal

for indigent clients to voluntarily give feedback to services they have received as

indigent clients. Include in data collection case outcomes for court-appointed

counsel versus hired counsel.
27

10. Develop a system that enables the courts to track which counsel is available and

promotes vertical representation (one attorney who can be with clients throughout

their whole case) to save time and other efficiencies. Streamline information

sharing between the Administrative Office of the Courts and MCILS to enable

communication with MCILS on a real-time basis.

11. Clarify and streamline the parameters for indigency to make them uniform, fair, and

consistent throughout the state.

12. Follow through with all additional recommendations provided by the Sixth

Amendment Center, who identified multiple issues with the right to counsel in

Maine's indigent defense system, to fulfill the state’s constitutional obligations.

13. Ensure the Maine legislature provides all supports necessary to the Maine court

system to alleviate the backlog, including consideration of proposed legislation to

speed up criminal trials by establishing timelines for the commencement of a

defendant’s criminal trial, and providing remedies for when time limits have been

violated.

14. Fund provision of supervision, mentorship, and training for attorneys to ensure

quality representation. Develop trainings that emphasize the importance of client

autonomy and of trusting relationships between attorneys and their clients when

providing public defense legal services.

15. Encourage diversion programs (e.g. mental health, substance abuse, domestic

violence) developed by prosecutors and public defenders, to lighten attorney

caseloads and to provide support for clients before they enter the criminal justice

system. Seek a funding source for cases involving mental health clients as these

cases require more time and support than the average case.

16. Consider decriminalizing certain offenses in order to reduce delays in assigning

public defense services.

17. Appoint an entity independent of MCILS to handle attorney timesheets and

payments.

The U.S. Commission on Civil Rights should issue the following recommendation to

Maine’s Attorney General and District Attorneys:

18. Develop a public defense system that increases parity between prosecution and

defense counsel, using a combination of public defenders and private attorneys for

defense.
28

19. Ensure the public defense system is funded in parity with prosecutors’ offices.

The U.S. Commission on Civil Rights should issue the following recommendation to the

State of Maine Board of Overseers of the Bar and Maine Bar Association to:

20. Develop trainings emphasizing the importance of client autonomy and trusting

relationships between attorneys and their clients when providing public defense

legal services.

21. Support the development of a hybrid system that relies on both employee defenders

and assigned defenders who are present in every prosecutorial district to ensure

clients get an attorney and that the attorney provides good service.

22. Examine current policies and procedures to determine how to increase the number

of attorneys that could provide public defense services. Examples for increasing

Maine’s attorney pool include expanding bar reciprocity to other states and

countries, researching and addressing low pass rates for the Maine Bar Exam, and

exploring how to provide loan forgiveness to individuals providing public defense

services.

The U.S. Commission on Civil Rights should issue the following recommendation to the

University of Maine School of Law:

23. Develop externship programs and clinics for law students and develop career

pathways for legal support staff through the University of Maine School of Law and

MCILS to provide indigent legal services to clients.

24. Develop part-time or night school programs that would train interested individuals

appropriately in providing public defense.
29

Appendix

Materials related to the Committee’s study are available at the following link: 

https://securisync.intermedia.net/us2/s/folder?public_share=409J0xbKeIQ2vuMJBvQond0011ef58&id=L01FL0luZ

GlnZW50IFNlcnZpY2Vz

A. Briefing materials

a. Transcripts

b. Agendas

c. Minutes

d. Panelist Presentations (slides)

B. Written Testimony

a. David Beaulieu

b. Larry Dansinger
Maine Advisory Committee to the

United States Commission on Civil Rights

U. S. Commission on Civil Rights Contact

USCCR Contact Regional Programs Unit

U.S. Commission on Civil Rights

230 S. Dearborn, Suite 2120

Chicago IL, 60604

(312) 353-8311

This report is the work of the Maine Advisory Committee to the U.S. Commission on Civil Rights. The

report, which may rely on studies and data generated by third parties, is not subject to an independent

review by Commission staff. Advisory Committee reports to the Commission are wholly independent and

reviewed by Commission staff only for legal and procedural compliance with Commission policies and

procedures. Advisory Committee reports are not subject to Commission approval, fact-checking, or policy

changes. The views expressed in this report and the findings and recommendations contained herein are

those of a majority of the Advisory Committee members and do not necessarily represent the views of the

Commission or its individual members, nor do they represent the policies of the U.S. Government.