A commissioner for the state agency that oversees legal services for Maine’s low-income defendants has resigned, citing both a recent lawsuit filed by a civil rights organization and what he sees as state leaders’ indifference about improving the system.

Robert Cummins has practiced law in Portland since 2014 and began serving on the Maine Commission on Indigent Legal Services in 2019. Previously, he chaired the Defense of Indigent Prisoners’ Committee for the Chicago Bar Association and served as court-appointed counsel in some criminal matters there.

When he relocated his practice about eight years ago, Cummins was immediately struck by the fact that Maine was the only state without a public defender’s office. Instead, private attorneys are appointed to defendants who can’t afford their own counsel and the attorneys are then reimbursed by the state.

Recently, that system has come under increased scrutiny, prompting forceful calls for increased funding and other reforms, and leading many attorneys who previously took cases to stop doing so. Some minor changes have been made in recent years and there are proposals before the Legislature – one bill would increase the hourly pay for attorneys who serve indigent clients; another would create a pilot public defenders program in Kennebec County – but Cummins said he doesn’t see enough urgency.

“There is a crisis in this state,” he said in an interview Friday. “It’s not properly funded. The wonderful lawyers who sacrifice their time are not supported. It’s not getting any better, it’s getting worse.”

In his resignation letter Wednesday, Cummins wrote to Gov. Janet Mills that he faced an “irreconcilable conflict” as he and other commissioners are being sued by the American Civil Liberties Union of Maine, which argues the commission is violating the constitutional rights of at least five people who are incarcerated and represented by state-appointed attorneys.

“It seems to boil down to a ‘I just don’t give a damn’ attitude,” Cummins wrote. “It has been argued that Maine does not give a damn that a poor person who is accused of a crime many not be adequately represented or have the full benefits of due process.

“It has been argued that Maine does not give a damn that the lawyers who seek to zealously represent an indigent accused are not respected or adequately compensated for their efforts or for their personal and professional sacrifices. It has been argued that Maine simply does not give a damn that the criminal justice system in Maine is in crisis.”

Cummins submitted his letter of resignation nearly a month after the ACLU suit was filed. The Maine Attorney General’s Office, representing the commission in the lawsuit, has yet to file a response to the complaint.

The ACLU argues that the state’s program for indigent defense is not living up to the standards set in the Sixth Amendment of the U.S. Constitution, which guarantees the right to counsel.

“It’s not fair for the government to threaten to put someone in jail or prison but not provide them with defense counsel who are ready and able to provide a meaningful defense,” Zachary Heiden, chief counsel for the ACLU of Maine, said in an email Friday afternoon. “Maine isn’t living up to its obligations under the law. We have filed a civil rights lawsuit to change that.”

A report by the nonpartisan Sixth Amendment Center, paid for by the state, found in 2019 that the commission wasn’t supervising appointed attorneys, and there were disparities in the types of legal representation people were receiving. These concerns were aired at length during a monthly meeting of the Maine Commission on Indigent Legal Services on Tuesday, the day before Cummins resigned.

Cummins had asked that the commission reach out to the governor’s office and state lawmakers with urgency, requesting more support for initiatives to ensure legal defense to all of Maine’s criminal defendants.

“What we should be asking for is to sit down with these legislative leaders … and educate them to the fact that we’ve got a bunch of folks out there trying to defend the indigent without the resources that are critically necessary for them to accomplish tasks that are consistent with the (U.S.) Constitution,” he said.

OTHER COMMISSIONERS DISAGREE

Other commissioners disagreed with Cummins’ assessment.

“I don’t think we’re a failure, or the attorneys who work for us and the indigent people of Maine are providing constitutionally inadequate service,” Commissioner Donald Alexander, a former justice on the Maine Supreme Judicial Court, said Friday. “I think that was a legitimate condition a couple years ago, but with the work the commission has done … there’s been a huge turnaround.”

Alexander acknowledged attorneys working through the commission to represent low-income defendants are financially limited and often overworked. But he doesn’t think this will be a long-term issue. Rather, he things attorneys are mostly experiencing burnout from a backlog in pending criminal cases due to the pandemic.

“A vast majority of attorneys who work for us do a terrific job under tremendous conditions,” Alexander said. “I think the commission is providing a constitutionally adequate level of service to the indigent defendants.”

The commission did vote this week to communicate with state leaders about some recent needs, while also supporting legislation to create five dedicated attorney positions and increase private attorney reimbursements, which is being considered by Legislature’s Appropriations and Financial Affairs Committee.

In the commission’s letter to Mills, Chair Joshua Tardy asked the governor and other state leaders to “participate directly in an open dialogue” about concerns with the performance of the commission and to fund the commission appropriately.

The concerns come at a time when cases are backing up considerably, in part because of a shortage of attorneys. As of March 25, the number of pending criminal cases was 82 percent higher than in March of 2019, and misdemeanor cases were up 63 percent for the same period. Meanwhile, there are 47 percent fewer attorneys who are willing to work with the commission representing indigent clients.

“The courts have faced ongoing difficulty in staffing cases with eligible attorneys,” Tardy wrote. “MCILS staff have been able so far to identify a willing attorney in every case, but it is becoming more difficult with each request.”

In response to Cummins’ letter, Mills’ press secretary, Lindsay Crete, said the governor “respectfully disagrees with his assessment that the Executive and Legislative Branches ‘do not give a damn.'” Crete pointed to a budget Mills signed in July 2021 that increased the reimbursement rate for attorneys from $60 per hour to $80 per hour. Mills’ action also created six new staff positions within the commission and increased the salary for its executive director.

“The governor has and will continue to work with the Legislature to improve the delivery of legal services to low-income people in Maine to ensure their constitutional right to counsel,” Crete said in an emailed statement.

CHANGES ARE ‘BARE MINIMUM’

Cummins said the changes that have been made are not enough.

“The idea that a little fix here and a little fix there solves the overwhelming problem is mystifying to me,” he said. “Yeah, there was some bare minimum improvements. But they don’t address the big picture.”

There are bills currently before the Legislature that would increase that hourly pay to $100 an hour, provide extra research services to appointed attorneys and more staff to help handle cases private attorneys can’t reach.

Commissioner Ron Schneider said on Friday that Cummins’ “departure is unfortunate.” He had joined Cummins in supporting another bill to create a pilot program for public defenders in Kennebec County. This would be Maine’s first ever public defenders office.

“I think the state needs a public defenders office,” Schneider said. “This is the step that we’ve never taken as a state, and I think now’s the time to take it.”

Cummins’ resignation was effective immediately. In order to fill the position, the speaker of the Maine House must provide the governor with a list of qualified candidates. The state Senate will then vote on whether to confirm Mills’ nominee.

One other vacancy on the commission, which has nine members when fully staffed, has been open since August 2021. The governor’s office said it plans to fill both seats “as expeditiously as possible.”

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