It was almost 4:30 a.m. on April 1, 2020, when a mother typed a desperate plea to officials at Cumberland County Superior Court.
She understood the circumstances surrounding her son’s case. Court records show the 24-year-old was being held at the Cumberland County Jail on several charges, including robbery and aggravated assault. But she also understood the gravity of the pandemic, and that her son was at risk. He had severe asthma, “a long history of respiratory illness and infection” and an unattended dental issue, she said. She wanted him to be able to await trial from their home in New Hampshire.
“He will only leave when I leave and that would only be to get our essential needs,” she wrote. “It is my goal that we work together in taking all possible precautions to help keep our loved ones and communities safe and healthy.”
But neither she nor her son was able to post the nearly $20,000 in cash bail. Today, he is still waiting in jail nearly two and a half years after his arrest for a trial now scheduled for early April. His is one of more than 26,000 pending felony and misdemeanor cases in Maine courts as of March 25, 2022, according to data from the Maine Judicial Information System. That’s roughly 10,500 more open cases than there were in March 2019.
Multiple attorneys representing clients with open cases declined to discuss specifics with the Portland Press Herald/Maine Sunday Telegram, but a review of court records found the backlog has been impacting thousands of defendants, although not all are waiting behind bars. Many are on pretrial release, languishing in a legal limbo as court officials delay and reschedule important proceedings. Victims of violent crimes, meanwhile, are becoming restless as they spend more time waiting to find out what consequences, if any, their abusers will face.
“I think the criminal justice system tried to catch up as quickly as possible, but it’s a lengthy system in the best of times and I think all of our systems really changed,” said Molly Louison, associate director for Sexual Assault Response Services of Southern Maine, an organization providing free services to anyone in York and Cumberland counties dealing with sexual harassment, abuse and assault. “That was really complex for survivors who are already dealing with potentially their own trauma, and then trying to navigate ever-changing systems on top of that.”
Some plaintiffs in civil cases for medical malpractice and personal injury have been waiting more than two years for jury trials and potential compensation. In fact, Maine’s court system announced last week it was launching a new program where retired judges, serving as “referees” will help address family-matter cases like divorce proceedings, and certain civil cases, that have been backlogged.
But the backlog’s tolls ripple far beyond individual cases. They portend systemic difficulties for years to come. Last month, in her annual address to state lawmakers, Chief Justice Valerie Stanfill of Maine’s highest court said the backlog is a consequence of “insufficient resources” that will only get worse without more help.
“Despite applying all available resources, technologies and revamped processes, we have yet to be able to cut the backlog in any meaningful way,” Stanfill said. “The pandemic has exposed the uncomfortable reality that we simply lack the capacity to just ‘catch up’ or to schedule and hear more cases with our existing workforce.”
FEWER CASES, LONGER PROCESSING TIMES
When Maine courts first began responding to the coronavirus pandemic – temporarily halting most in-person events for criminal cases, and placing nonemergency civil proceedings on hold – a number of temporary policies were enacted to try to mitigate overcrowding in jails and courthouses.
Law enforcement agencies began issuing more summonses, meaning they could still charge people but didn’t have to arrest them. District attorneys’ offices say they were more selective with the cases they filed. Some Mainers in jail awaiting trial were released and allowed to wait at home.
“I think we’ve been viewing the cases appropriately, given the pandemic,” Cumberland County District Attorney Jonathan Sahrbeck said. “I think my office has acted appropriately when it comes to knowing our task for prosecuting cases, and doing so in a way that’s not going to compromise public safety.”
Prosecutors in Cumberland County filed 2,072 fewer new criminal cases in 2021 than they had in 2017, according to data from Maine’s administrative office of the courts. Statewide, Maine courts saw 10,731 fewer new filings in 2021 than in 2017.
But the decrease in new filings has not balanced out the state’s inability to process cases in a timely way.
“I’m sure they’re marketing this as ‘doing things more differently,’” said Tina Nadeau, a defense attorney in Cumberland County. “‘Differently’ is not enough. It has to be proportional to this crisis.”
Nadeau said to make any real dent, prosecutors need to dismiss more cases.
“If anything, the pandemic should’ve taught us to reconceptualize what it means for public safety,” she said. “Are we any safer with a backlog? Cases with violence, cases with real harm to the community, aren’t being addressed because the docket is clogged with cases that don’t involve public safety whatsoever.”
Because of an 82 percent increase in pending felony cases, and a 63 percent increase in pending misdemeanors from March 2019 to March 2022, defense attorneys say their clients are facing longer wait times for trial both in and out of jail.
Meanwhile, there are more people being held in jails who have several cases open, involving potentially more than one trial. Over the time courts were advising law enforcement agencies to make fewer arrests and issue more summonses, some people accrued more charges than they would have had they been promptly jailed. For many, the additional charges come from violations of their conditions of release from prior arrests. Such violations mean things that wouldn’t be illegal on their own – possessing alcohol, being at a certain address – are made into new crimes.
Arrests are back to normal now, but York County defense attorney Joe Mekonis said prosecutors aren’t taking into account the fact that many defendants are tied up in multiple cases, due to these pandemic arrest policies.
“They’re aware and they act sympathetic, but their bottom line is that they can’t just dismiss people who have broken the law, even when it’s multiple infractions,” he said.
Prosecutors say some defendants are using the backlog to their advantage by waiting until the very last minute to plead guilty and not go to trial.
“There’s a lot of folks who are not going to have trials,” said Natasha Irving, district attorney for Lincoln, Knox and Waldo counties. “For district attorneys’ offices, this can be very difficult because my staff have to prepare for these cases and then it turns out none of them are going to have a jury trial, or just one of them will.”
But defendants are being offered “unreasonable” plea agreements, Nadeau said.
“(It’s) their right not to plead,” she said. “The power holders in this whole system are the prosecutors.”
NOT ENOUGH ATTORNEYS
Many people waiting in Maine county jails for trial have indicated in court records they don’t feel they’re getting enough time with their court-appointed attorneys.
“I can never get a hold of him or reach him when needed,” one defendant wrote in a letter received Oct. 6, 2021, seven months after his arrest. He was writing about his third attorney.
Another man, waiting for hip replacement surgery while in jail, also wrote requesting another attorney because the lawyer he was assigned – his first – “fails to communicate with me and my family.”
The man wrote that he was in need of a serious medical procedure. He was facing charges for operating without a license, having scheduled drugs and violating conditions of his release.
“My case isn’t really a big case,” he wrote on Jan. 3, 2022. “My record is bad, but I don’t believe that I should suffer with pain, without getting a response.”
With COVID-19 restrictions still in place inside Maine’s county jails, attorneys are getting less in-person time and access to their defendants.
“In the old days, we could go down to the jail,” defense attorney Rob Andrews said. “Now, because the jails for the most part have not invested in video technology or technology that allows lawyers to have unrestricted contact with their clients, that has impeded our ability to go and meet with them.”
There also are fewer attorneys to handle the state’s indigent, who make up a majority of the people sitting in jails. As a result, the attorneys who do take the cases often have much heavier caseloads.
Justin Andrus, executive director for the Maine Commission on Indigent Legal Services that oversees attorneys assigned to indigent defendants, said that from Jan. 1, 2019, to March 17, 2022, the number of such attorneys at the commission’s disposal had decreased by 47 percent.
Andrus said the backlog is violating the constitutional rights of the people the commission’s attorneys represent. In one instance, a person entered into a plea agreement in November and had a sentencing hearing scheduled for March 14, during which the judge was going to consider the time that person already had served in jail waiting for trial. But because of the backlog, that hearing was rescheduled for July. Andrus said he’s unaware how that affects how much time this person might have to serve and if they’ll have to spend any extra time behind bars.
“I understand and respect and empathize with the reality that the courts are terribly underresourced,” he said. “It’s not the fault of any individual there that this has occurred, but it’s an excellent example of how the resourcing at the courts, combined with the caseload, can have a harmful impact to a defendant.”
FOR SURVIVORS, A DELAY IN HEALING
Because criminal courts are so clogged, advocates for survivors of sexual abuse and violence say the backlog’s impact on victims is multifaceted.
Sexual Assault Response Services of Southern Maine has helped guide survivors of sexual assault and violence through the court system since 1973, when they opened as the region’s first rape crisis center. In addition to staffing a 24/7 crisis line, they attend court hearings with survivors, help them file protection orders in civil court and advocate for them in investigations by law enforcement agencies.
“I think we have an idea from shows like ‘Law and Order’ that this process happens quickly,” said Louison, the organization’s associate director. “On TV, you go from making a report to being on the stand relatively quickly. In reality, this is often a multiyear process.”
Many survivors who choose to report their abusers through the criminal justice system are hoping the experience will be a part of their healing process.
“I think for survivors experiencing how long delays in the system are taking, that healing process is just going to be longer,” Louison said. “At the end of the day, every meeting is again revisiting a trauma in a person’s life when they reported a sexual assault. Taking longer creates a lot of anxiety for survivors.”
The backlog has forced agencies like SARSSM to take advantage of resources outside criminal courts. An e-filing system through the civil courts, to obtain protection orders, has made a world of difference, Louison said. The organization also is helping survivors navigate therapy, counseling and other support groups they partner with in southern Maine.
‘WE HAVE BEEN CHALLENGED TO INNOVATE’
Chief Justice Stanfill described the backlog – both its causes and its consequences – as the most pressing issue facing Maine courts.
The court system’s “greatest barrier,” she said, is insufficient resources, and things already were lean before the pandemic.
Last month, court administrator Amy Quinlan brought financial requests to the Legislature’s Appropriations and Financial Affairs Committee for new staff and help with technology. She also asked lawmakers to increase funding for civil legal aid services.
“The reality is that even before the pandemic, the courts have struggled to keep up with the demand. The pandemic has laid bare some critical resource deficiencies,” Quinlan said. “We have been thoughtful in our supplemental budget requests focusing on resources to address the backlog as well as long-term critical staffing needs.”
Last week’s announcement that the court system would begin accepting family matter and non-jury cases for a pilot “referee” program, using retired judges as mediators, could help things run more smoothly, if only temporarily. Many of those cases have taken a back seat to criminal matters.
In her annual address to lawmakers, Stanfill said the backlog is an opportunity for “creativity and innovation – maybe even experimentation.”
“Although the pandemic has upended regular court operations in unprecedented fashion, it also presents an enormous opportunity to re-examine how we do business,” Stanfill said. “We have been challenged to innovate. And we have!”
But as Maine courts made their financial plea to state lawmakers earlier in March, the mother of the man in the Cumberland County Jail likely will continue to worry about the well-being of her son, who is now 26 and scheduled for trial April 6.
She has been present for most of her son’s remote hearings, via Zoom, according to comments from his attorney in a hearing last year.
“This is a case that is almost certainly on the trial route,” his attorney stated. “He has set up situations on the outside that will ensure the integrity of the judicial system and also protect the public. He is going to be working. He is going to have housing and he has family and a support system who loves him. This is not an individual who should remain incarcerated for who knows how long until he finally receives his right to a speedy trial.”
Send questions/comments to the editors.
