Down is up For Crime in Maine – Does Anyone Care Why?
Posted by Ed Folsom December 21, 2024.
MCILS/MPDS cases rose 25% while criminal cases filed in court dropped 30%.
Somehow, from fiscal year 2014 through fiscal year 2024, new cases opened annually by the Maine Commission on Public Defense Services (formerly the Maine Commission on Indigent Legal Services) rose from a number that was 44.8% of the number of all criminal cases filed in Maine courts to 80.69% of the number of all annual Maine criminal court case filings. For fiscal year 2022, the percentage was even higher, coming in at 84.3%. While the number of criminal cases filed in Maine courts declined by 30% from fiscal year 2014 through 2024, the number of cases opened annually by the MCILS/MCPDS rose 25%. What is wrong with this picture?
Maine’s rate of reported crimes dropped 40% from 1995 through 2020, 8.6% from 2021 to 2023.
The Maine Department of Public Safety recently released its annual report, Crime in Maine 2023. Starting with the 2021 Crime in Maine report, the Department of Public Safety changed its data-recording method. Instead of continuing to categorize crimes under one of eight categories, under the Uniform Crime Reporting (UCR) system that Maine used for about 100 years, the Department switched to a twenty-six-category system known as Incident Based Reporting (IBR). As I blogged regarding last year’s Crime in Maine report, this makes it impossible to meaningfully compare data under the old system to data under the new. However, under the old system, the rolling 10-year average of overall crime in Maine dropped by 39.7% from 1995 (42,818 crimes) to 2020 (25,717 crimes).
The recently released 2023 Crime in Maine report shows a continuing downward trend in Maine crimes. Crimes in all IBR categories were lower in 2023 than they were in 2021. Overall, crimes in 2023 were 8.6% below their 2021 level, declining from 32.44 crimes per 100,000 population in 2021 to 29.65 in 2023. This is good news. Now for some less-good news and some strange news…
The less-good news.
According to Maine Judicial Branch information, included here, the hangover from Maine’s COVID-19 pandemic policies has left the courts significantly backlogged, still. As of November, there were 58.8% more felony cases pending statewide than were pending in November of 2019 (7,166 versus 4,514). The numbers are somewhat better for Class D and E crimes. There were 22.2% more Class D and E criminal cases pending this November than were pending in November of 2019 (15,837 versus 12,962). But the backlog arose even while the number of criminal filings in Maine courts fell significantly, which brings me to the strange news.
The strange news.
As the rate of reported crimes dropped in Maine, criminal case filings in our courts also dropped, as you would expect. The Maine Judicial Branch Annual Reports for fiscal years 2014 and 2024 show that criminal filings declined from 55,744 in fiscal year 2014 to 38,812 in fiscal year 2024, for a 30% decline during the period. MCILS/MCPDS information gleaned from Operations Report memoranda prepared for its monthly commission meetings between July of 2013 through June of 2024 shows that new cases opened annually in the Commission’s defenderData system rose 25% during the period, from 24,976 in fiscal year 2014 to 31,318 in fiscal year 2024.
While criminal cases filed in Maine courts declined by 30%, the number of cases opened by the MCILS/MCPDS increased by 25%. This is not what you would expect, is it?
The bottom line is that in fiscal year 2014 the MCILS opened 24,976 new defenderData cases. That number was 45.7% of the number of all the criminal cases filed in Maine courts that fiscal year — 55,744. By fiscal year 2024, the percentage had risen such that the number of new cases opened in the defenderData system was 80.69% of the number of all criminal matters filed in Maine courts. The percentage was even higher in fiscal year 2022 when the number of new defenderData cases was 84.3% of the total number of criminal cases filed in court.
The following reflects the trend for fiscal years 2014 through 2024, showing the number of all new defenderData and all new criminal court cases opened each fiscal year, along with the rise in the number of new MCILS cases as a percentage of the number of new court cases each year:
Year defData Court Crim. %
2014 24,976 55,744 44.8%
2015 25,449 53,935 47.18%
2016 26,176 51,762 50.56%
2017 25,918 47,140 54.98%
2018 26,864 50,126 53.59%
2019 27,536 47,991 57.37%
2020 27,032 42,079 64.24%
2021 28,783 38,288 75.17%
2022 31,809 37,728 84.13%
2023 30,760 39,602 77.67%
2024 31,318 38,812 80.69%
Given that MCILS/MCPDS handles case types other than adult criminal cases, was the overall rise in the number of yearly new MCILS/MCPDS cases caused by an increase in case types other than adult criminal matters? That is, has the number of MCILS/MCPDS adult criminal cases actually declined along with the number of adult criminal cases filed in court each year, while other types of MCILS/MCPDS cases have increased the overall number of defenderData cases? In short, “No.”
The rise in MCILS cases — both the absolute number of new MCILS cases and the number of new MCILS cases as a percentage of the number of new criminal charges filed in court each year – has been caused by a rise in the number of new MCILS adult criminal matters. It has not been caused by a rise in the other categories of cases handled by the MCILS.
Five categories of MCILS cases – felonies, adult lawyer-of-the-day, misdemeanors, adult probation violations, and drug court cases – made up 76.36% of all the new defenderData cases opened in FY 2014. According to numbers provided in the MCILS’s January 2024 report to the Maine Legislature, those same five categories made up 81.4% of all new defenderData cases opened in 2023. The percentage of yearly new MCILS/MCPDS cases comprised of adult criminal cases has risen over time, not shrunk.
Within the five adult defenderData criminal categories, probation violation cases slipped from about 7.5% of the total in fiscal year 2014 to 4.9% in FY 2023, while misdemeanor cases rose from 29% of total new defenderData cases in FY 2014 to 38.5% in 2022 and 36.4% in 2023.
Why are more and more people being declared eligible for appointed criminal defense counsel?
In adult criminal cases, people are entitled to court-appointed counsel when they are either: (1) determined to be indigent and charged with murder or a Class A, B or C crime (a felony), or (2) determined indigent, charged with a Class D or E crime (misdemeanor), and face a risk of jail. People who are charged with a misdemeanor and are indigent are not entitled to appointed counsel unless they face a risk of jail. People who are charged with a felony and are determined indigent are entitled to appointed counsel regardless of any risk of jail. Nobody is entitled to appointed counsel for any criminal charge unless the person is determined indigent.
“Risk of jail” means a risk of being sentenced to serve time in jail or of receiving a suspended jail sentence that might potentially be imposed upon a later violation of conditions, such as probation conditions. The State has a lot of control over “risk of jail,” in that a person does not face a “risk of jail” if the prosecutor declares that it is not seeking a jail sentence, either immediate or suspended.
The rise in new defenderData misdemeanors, from 29% of all new defenderData cases in FY 2014 to 38.5% in 2022 and 36.4% in 2023, is definitely caused by an increase in the number of people being declared indigent. Again, without an indigency declaration, nobody qualifies for appointed counsel. But is it also caused by prosecutors simply choosing to expose a higher percentage of misdemeanor defendants to a “risk of jail?”
Whatever the cause, the increase in new yearly MCILS misdemeanor cases makes up a big part of the increase in MCILS cases overall. In absolute numbers, MCILS misdemeanor cases rose from 7,256 out of a total of 24,976 new MCILS cases in fiscal year 2014, to 12,305 out of a total of 31,956 new MCILS cases in 2022. This increase in MCILS misdemeanors (up 5,049 cases) was responsible for more than 72% of the total increase in MCILS cases (up 6,980 cases) between 2014 and 2022.
But an increase in “risk of jail” determinations does not explain the entire overall MCILS/MCPDS case-rise between FY 2014 and FY 2024. What apparently must explain it is an increase in the percentage of people charged with crimes in Maine who are declared indigent now, versus the lower percentage who were declared indigent in the past. As to this:
- Why has the percentage of criminal defendants who are now declared indigent risen to this degree?
- Are Maine Prosecutors simply choosing to expose more people to a “risk of jail” for misdemeanor charges, causing a massive increase in the number of people reviewed for indigency?
- Are so many more people impoverished now than in 2014?
- Are the relatively-poor being charged with an increasingly higher percentage of overall crimes charged, while the relatively well-off are being charged with a shrinking percentage?
- Has the standard for determining that a person is indigent been lowered, such that the standard now applies to many more people than it did in 2014? If so, why?
- Were lots of people previously declared not-indigent when they were in fact indigent, or are lots of people now being declared indigent who in fact are not?
- Why has a 30% decrease in criminal cases filed in court over the past 11 years not resulted in an economic benefit, through a reduction in the number of people who require criminal defense counsel at state expense?
- Why, instead, has the sharp, 30%, drop in criminal cases filed in court been accompanied by a 25% increase in new MCILS/MCPDS defenderData cases?
Even though the crime rate has dropped sharply, and the number of criminal charges filed in court has dropped 30% in the past 11 years, suddenly there are not enough lawyers to represent indigent defendants on this greatly reduced number of criminal charges.
There is yet another aspect to the strange. Back in 2014, when the number of criminal case filings in court was about 30% higher, Maine was able to find attorneys to represent criminal defendants who were eligible for appointed counsel. Now that criminal case filings have dropped 30%, Maine has a serious problem finding lawyers to appoint. This is true despite the state adding a rural defender unit and a public defender office in Augusta over the past couple of years, both staffed by state-paid defenders, and despite a tripling of the rate paid to appointed counsel, from $50/hr. to $150/hr.
The Maine ACLU reports that, on November 1, 2023, there were 106 criminal defendants eligible for court-appointed counsel for whom there was no available lawyer to appoint. Thirty-eight of them were in custody. On October 28, 2024, that number had risen to 719 people, of whom 157 were in custody. Things were even worse on September 23, 2024, when there were 803 people without counsel and 202 of them were in custody (You might already know that I suspect that the ACLU, itself, has exacerbated this mess).
In summary.
Overall, as the number of criminal cases has declined by nearly a third, the number of cases opened by the MCILS/MCPDS has increased by a quarter, to the point where the total number of new defenderData cases opened each year now approaches the total number of new criminal cases filed in court each year. This has apparently been caused by an increasing number of people who are charged with crimes being declared indigent. Why are increasing numbers of people charged with crimes now being declared indigent?
And with far fewer criminal cases filed, Maine suddenly can’t find enough attorneys to represent criminal defendants who are entitled to appointed counsel, despite the addition of a group of state-paid public defenders and a tripling of the pay rate for appointed counsel.
Seriously, what is wrong with this picture? Is Maine State Government incapable of figuring it out?
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