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Maine’s Crime Rate & Criminal Cases Drop, Court Backlogs & MCILS Cases Rise.

Maine’s Crime Rate & Criminal Cases Drop, Court Backlogs & MCILS Cases Rise.

Posted by Ed Folsom, March 5, 2024.

As criminal case filings declined, court backlogs grew.

As discussed in my last post, Maine’s courts are experiencing a large criminal case backlog. On February 23, 2024, there were 7,278 pending felony cases; a 78.6% increase over the 4,074 that were pending during the same week in February of 2019. The unified criminal dockets overall — felonies, misdemeanors, and civil infractions – had 24,495 cases pending on February 23, 2024, up 48.3% from the 16,519 pending the same week of February 2019. But here’s the kicker: Annual criminal case filings decreased markedly over the period.

Judicial branch reports show that there was a slight upward blip in annual criminal filings between 2022 and 2023 when they rose from 37,728 to 39,006 (+1,278 cases, 3.4% rise). However, for the overall period 2019 to 2023, annual criminal filings declined from 47,991 to 39,006 (-8985, 18.7% drop). The Judicial Branch’s 2018 annual report (recently removed from its website) showed 50,126 criminal filings that year. That means annual criminal filings dropped 22% between 2018 and 2023 (-11,120).

The drop in criminal case filings tracks with the decline in reported crimes.

The decline in criminal filings makes perfect sense given the declining trend in the number of reported criminal cases. The Maine State Police post annual “Crimes In Maine” reports. The most recent report is for 2022, but they changed the reporting methodology beginning in 2021. For about 100 years before that, continuing through 2020, all reported crimes were gathered under 8 “index crimes” categories in the Unified Crime Reporting (UCR) system.

Beginning in 2022, Maine began to use the Incident Based Reporting Data (IBR) system which categorizes and reports offenses under 29 separate offense categories. As a result, it is fairly meaningless to try to compare even overall crime numbers gathered under the old system to those gathered under the new system. I will focus on the trend through 2020, as reported by Maine State Police under the old UCR system.

The 1995 “Crimes in Maine” report (the oldest one posted) shows a 10-year average of 42,818 reported index crimes. The 2020 report shows a 10-year average of 25,797 reported index crimes. That represents a 39.7% decline between 1995 and 2020. Narrowing the time frame, the 2010 report shows a 10-year average of 34,040 reported index crimes. With that, we can see that the 10-year average of reported index crimes dropped 8,243 — 24.2% — between 2010 and 2020.

What does any of this have to do with my last post on Maine’s indigent defense problems? As discussed there, while the annual crime rate has declined sharply over the long and short term, and while annual criminal court filings have also declined sharply, the courts have accumulated a very large backlog of pending criminal cases. The backlog is largely, if not entirely, attributable to the response of Maine State government and the Judicial Branch to the COVID-19 pandemic.

To what should we attribute the sharp rise over the past several years of cases handled by the Maine Commission on Indigent Legal Services (MCILS)?

As the crime rate and criminal case filings have declined, the number of cases handled by the MCILS has risen. In the MCILS’s annual report to the Legislature dated January 16, 2024, there is a graph showing the number of case assignments the MCILS handled from 2017 through 2023. In 2017, they handled 25,824. Case assignments peaked in 2022, at 31,640, before dropping to 30,656 in 2023. Still, there were 4,832 more assignments in 2023 than in 2017, an 18.7% increase.

If the number of criminal cases filed in court were to increase significantly while the number of reported crimes decreased significantly, we should think, “There’s something wrong with this picture.” For the same reason, when the number of MCILS case assignments significantly increases while the number of criminal cases filed in court significantly decreases, we should think, “What’s wrong with this picture?” Why is this happening?

I have seen people argue that the MCILS is experiencing problems providing rostered attorneys for case assignments because too many cases are being filed in court. In a recent Portland Press Herald article, this was posited as one of the reasons MCILS attorneys can’t meet the demand for appointed counsel. And in the MCILS’s January 16, 2024 annual report, Executive Director, Jim Billings, wrote:

“The private attorneys who have historically provided indigent legal services, and who continue to do this work, are dedicated and hard-working attorneys. There are, however, simply not enough of them for the number of cases we see pouring into the justice system [emphasis added].” (Report, p. 10).

Is a flood of criminal case filings really causing the MCILS to be unable to provide enough rostered attorneys to keep up with the demand for assigned counsel? As reviewed above, criminal case filings in Maine’s courts declined 22% between 2018 and the end of 2023, while MCILS case assignments in 2023 were 18.7% above 2017 case assignments. Given this marked decline in the number of criminal cases filed, it’s very unlikely that the MCILS’s trouble keeping up with demand can legitimately be blamed on “the number of cases we see pouring into the justice system.” What, then, is the cause?

The MCILS has no control over the number of case assignments it deals with each year, so the increase can’t be caused by any discretionary act on their part. The MCILS does deal with matters other than adult criminal cases. They deal with juvenile cases, appeals, post-conviction reviews, protective custody (child protective) cases, and other matters. But there is nothing to indicate that the increase they have experienced in their caseload reflects a spike in these other, non-criminal, case types.

As for adult criminal cases themselves, people who are determined by the court to be indigent are entitled to court appointed counsel if they are charged with murder or a Class A, B, or C crime, or if they are charged with a Class D or E crime and there is a “risk of jail.” Courts make the “risk of jail” determination by asking the prosecutor at the arraignment if there’s a “risk of jail.” That is: If the person is convicted, will the prosecutor seek a jail sentence?

Have “risk of jail” cases increased?

Has there been an increase in the number of Class D and E crimes for which prosecutors have been declaring that there is a risk of jail? If so, why are prosecutors doing that, especially given the strain that Maine’s criminal justice system is currently under? Each time a prosecutor marks an indigent defendant’s case for a jail sentence, that makes one more case that requires the court to appoint counsel. Often these days, there is no counsel to appoint.

Is the increase in the MCILS’s caseload due to churning?

If the increase in MCILS case assignments isn’t due to an increase in prosecutorial “risk of jail” declarations, what else could be causing it? Given the backlog of cases, the length of time cases are languishing, and the large number of attorneys refusing to continue to work for the MCILS and fleeing its rosters, the MCILS must be frequently re-assigning cases from attorneys who withdraw from appointed cases to those counsel who remain on its rosters. If these re-assignments result in “case assignment” statistics for the MCILS, this is driving up their numbers as people churn through lawyers while they wait years for their cases to be resolved.

When replacement counsel are assigned from the MCILS’s thinning rosters, any trouble finding a new lawyer to assign can’t legitimately be blamed on “the number of cases we see pouring into the justice system.” Chiefly, having more lawyers willing to work for the MCILS is what would alleviate the problem. It would also help if court backlogs weren’t causing criminal cases to languish for years on end, leading to case-churning over time.

What else might be causing MCILS’s caseload to increase?

Another possible cause of the increase in MCILS case assignments:  Maybe the economy is pushing a bunch more people into indigency these days.

Other than those possibilities, I can’t imagine why the MCILS’s numbers are rising while the number of criminal case filings are falling. But I bet the people in Maine State government who control the data could identify the source of the problem, if their feet were held to the fire.

To recap:

Criminal cases are massively backed up in Maine courts, even though criminal case filings dropped 22% between 2018 and 2023 and the 10-year average of reported annual crimes in Maine dropped 39.7% from 1995 through 2020. Whatever is causing the MCILS’s inability to keep lawyers on its rosters, it isn’t “the number of cases we see pouring into the justice system.”

Even though annual criminal case filings dropped 22% between 2018 and 2023, the MCILS experienced an increase in the number of assigned-counsel cases it deals with, with the 2023 number coming in 18.7% higher than the 2017 number.

What’s up with that?