Editor’s update (Jan. 10, 2021): Rep. Victoria Morales (D-South Portland) has resubmitted “An Act to Provide the Right to Counsel for Juveniles and Improve Due Process for Juveniles” for consideration during the 130th Maine legislative session, which convenes this month.
The fates of more than 50 bills aiming to change Maine’s criminal justice system are uncertain now that legislative leaders cannot agree on the timing or scope of a special session.
As each side blames the other – Democrats say Republicans pushed them for weeks to come back only to twice reject the idea, while Republicans say Democrats kept them in the dark and refused to negotiate the terms for an abbreviated session – rank-and-file lawmakers with bills stuck in the pipeline are left to wonder what’s next.
It’s possible Gov. Janet Mills will use her power to call lawmakers back to Augusta sometime this year. But when they adjourned on March 17, she released a statement indicating that “it is her strong preference that during such a session priority attention be given to only the most pressing matters.”
The governor hasn’t decided “whether or when to call a special session” but continues to speak with legislative leaders about “the timing and focus” of any session, Mills spokeswoman Lindsay Crete wrote in an Aug. 11 statement.
“The governor always welcomes legislator’s further input on the use of the federal CARES Act funding and any other federal stimulus funds as well as our ongoing efforts to defeat the virus based on good science and medical expertise, not politics,” Crete wrote.
Maine received $1.25 billion in federal funding as part of the March stimulus package.
Whether a session — should one be called — will include consideration of any of the 53 bills recently voted out of the Criminal Justice and Public Safety, and the Judiciary committees is unclear. Efforts to eliminate cash bail for most low-level crimes, a bill that aims to reduce the number of children in the juvenile justice system, and a bill to help community services keep people experiencing a mental health crisis out of jail are among the pending measures.
“What happens if we don’t go back in?” said Rep. Charlotte Warren (D-Hallowell), House chairwoman of the criminal justice committee. “All of that work dies.”
Warren and others spent the last 18 months on task forces and committees that gathered data, revised legislation and worked toward consensus in hopes of bringing meaningful change to Maine’s criminal justice system. Advocates for criminal justice reform like the American Civil Liberties Union and even the state’s Department of Corrections commissioner have said there’s an appetite for change that’s different from previous years.
Among the pressing items on Warren’s list are a bill to reform the county jail funding system, a bill to reduce the population at the troubled Long Creek Youth Development Center, a measure aimed at drug sentencing reform and one supported by all prosecutors in the state to help reduce court caseloads.
But while Warren worries about those bills and others, Rep. William Tuell (R-East Machias) said he’s OK with reintroducing a measure next year – if he gets re-elected – that would give Washington County its own district attorney. He said if lawmakers do come back this year, they should focus on virus-related bills, such as budget cuts and efforts to deal with the economy – not the hundreds of bills that were left in limbo when the Legislature adjourned.
“We shouldn’t be going back for 500-600 bills that are unresolved,” he said. “We could easily be sitting there for a month and everybody is going to be making a case for their own bill.”
Tuell said he would likely revise his bill next year so that it eliminates a public vote on the idea of letting Washington County elect its own district attorney and instead creates the new DA position. If the bill passes, it would be the first change to a system created more than 40 years ago when the number of district attorneys across the state was cut from 16 to eight.
Several Washington County officials lobbied for the change earlier this year, saying that the types of drug-related crimes and the sheer size of the current district that covers Hancock and Washington counties makes it necessary for Washington to get its own prosecutor.
Since January, The Maine Monitor has tracked legislation aimed at making significant changes to the state’s criminal justice system as part of its Due Process series. Over several weeks, the Monitor examined the considerable power of district attorneys, the lack of data to help inform decision-making, programs that are available in some parts of the state but not others and efforts by the court system to reduce the number of people in jail because they missed a court date.
Bills in limbo
If lawmakers don’t return, or return for a narrowly focused session, hundreds of bills won’t be taken up. More than 450 were pending in March when lawmakers adjourned, but with a projected budget deficit of $524 million for the 2020-21 fiscal year, bills that cost money face a difficult if not impossible path to approval.
But for other bills dealing with policy changes, lawmakers and advocates still hope 2020 could be the year for lasting change. Meagan Sway, policy counsel with the ACLU of Maine, said she’s hearing mixed messages about whether lawmakers will return and if they do, what bills will be considered.
Especially after the national uprising in the wake of George Floyd’s murder, there’s a real demand for change in criminal justice. It would be a real shame to not go back and have to start the process all over again in January.”
— Meagan Sway, ACLU of Maine
She said there are risks in waiting until next year, including the November election that will form a new Legislature, the delay of needed reforms for at least another year and the momentum for change sparked by the murder of George Floyd by a Minneapolis police officer that led to nationwide protests.
“I think we’ve seen, especially after the national uprising in the wake of George Floyd’s murder, there’s a real demand for change in criminal justice,” she said. “It would be a real shame to not go back and have to start the process all over again in January. There was a lot of hard work that went into the bills, and a lot of negotiating and compromise.”
One of those measures is LD 1421, which would eliminate cash bail for most low-level crimes. Sway said it would help address the problem of people being stuck in jail before they are convicted because they can’t afford bail. Another example is LD 1684, which aims to reduce the number of children in the juvenile justice system. Lawmakers, advocates and others spent 18 months working out the details, an example of the kind of work that often goes into major changes in the criminal justice system, Sway said.
The ACLU is also tracking LD 2043, which seeks to reclassify some non-violent offenses from crimes to civil infractions and has been amended to prohibit police officers from pulling people over because of an expired registration. Sway described it as an attempt to reduce police stops and what she described as racial profiling by police looking for a reason to pull over a disproportionate number of “Black and brown people of Maine.”
“In this moment when we’re having this reckoning on race, that should be a debate that people are willing to have and that needs to be had,” she said.
Rep. Victoria Morales (D-South Portland) said she’s “very concerned” about what might happen to her bill, LD 1684, which seeks to reform the way children are handled by the criminal justice system. As it is now, there’s no age in state law that limits when a child can be charged with a crime. Morales’ bill sets the age at 12, so children 11 and under cannot be charged with a crime no matter their conduct.
In addition, the bill removes the one-year mandatory minimum sentence for sending a child to Long Creek, ensures they have legal counsel throughout their incarceration and calls for judicial reviews every six months if the child and attorney request them.
“I’m really disappointed that we were not able to move politics aside and just focus on the important work we have done,” she said, noting that it took two years to get all parties on board with the legislation, including prosecutors, the defense bar, the judicial branch and the governor’s office.
If lawmakers do not return this year, Morales said “we have to come back and do the whole thing over again” with a new group of lawmakers and different leaders of the committees. Morales said if given the chance, she would argue that her bill is COVID-related because the disproportionate number of Black, brown and indigenous people who are incarcerated, which puts them at higher risk of infection.
“It is a public health issue to pass this bill,” she said.
Session or no session?
When they adjourned in March, legislative leaders released a joint statement saying they were “temporarily ending the legislation session” to help combat the spread of the coronavirus. It was early in the pandemic, five days after Maine’s first presumptive case was identified. And although they gave no timetable, lawmakers seemed to indicate their intention to return, referring to the adjournment as temporary and a suspension.
Then, on May 2, the four Republican leaders from the House and Senate sent a letter to House Speaker Sara Gideon (D-Freeport) and Senate President Troy Jackson (D-Allagash) asking them to reconvene after detailing concerns they had about the way Mills was using her emergency power.
Among the concerns, the GOP leaders said Mills refused to allow commissioners to answer questions from lawmakers; that additional data they requested on the virus from the Maine Center for Disease Control and Prevention had not been provided; and information they wanted about how Mills was deciding which businesses could be open was never sent to them.
“If the governor refuses to share the information necessary to keep us informed of how she is making decisions of her own accord, we are left with no choice but to convene and demand she answer our questions with the full force of legislative authority,” the letter read.
(Pending bills) can wait and be reintroduced in January.”
— Senate Minority Leader Dana Dow (R-Waldoboro)
At that point, Jackson and Gideon both said they did not feel it would be safe to have lawmakers return to Augusta.
On June 15, Republicans again called on Democrats to come back to session, saying they wanted “a narrowly defined, limited agenda focused only on addressing COVID-19.” On July 16, Jackson and Gideon polled members to see if they wanted to return, but Republicans refused to participate. They tried again with another poll Aug. 5, with Republicans again refusing to respond.
Senate Minority Leader Dana Dow (R-Waldoboro) and House Minority Leader Kathleen Dillingham (R-Oxford) said they were left out of the decision-making process as to the scope of the session.
“We said we would consider coming back for emergency legislation,” Dow said, defining it as measures related to COVID-19, such as school funding or money needed for cities and towns. “I’m not anxious to sit around with 186 of us and then equally distribute us back around the state.”
As to what happens to bills left pending, Dow said, “they can wait and be reintroduced in January.”
Dillingham said the process worked well in March, when leaders of both parties met to hash out which bills would be taken up before adjournment. She’d like to meet with Democrats to again discuss which bills are emergencies and which can wait until the new Legislature is seated in December.
“We’re in a state of emergency,” she said. “We should make sure the session is as short as possible. If we’re going to have a lot of legislation, that’s going to have a lot of debate.”
On criminal justice bills, Dillingham said she’d want to hear the reasoning behind why the bill cannot wait and fully understand the larger implications.
“I think it’s a very large waste of our resources that we cannot afford. I don’t think it should be so easy to say ‘ah, we can do it all over.’”
— Rep. Charlotte Warren (D-Hallowell)
Before the Aug. 5 poll, Democrats said the scope would be pared to bills that had been recently voted out of committees, 74 percent with bipartisan support. The 162 bills include several criminal justice and judiciary bills that are pending, although some are likely to draw debate because they were not unanimously endorsed in committee.
Jackson said for bills with bipartisan consensus, the process can move quickly, noting that on the last night before adjournment in March, they voted out 85 bills. He said there was never talk of a weeks-long special session.
“I told them from day one it could be just a two-day session,” he said. “We all knew it would be a much smaller scope.”
In a statement released after the August poll of members, Gideon, who has been hit hard by television ads accusing her of failing to call lawmakers back for a special session, said the Republicans’ continued refusal to return shows their priorities. Gideon is running for the U.S. Senate against incumbent Republican Susan Collins.
“A vote to convene would have provided an opportunity to have a real discussion about the hardships Maine families and small businesses are experiencing and how the Maine Legislature can provide targeted relief in a way that bolsters our economy,” she said. “But this vote shows that only some of us were serious about taking action on those priorities.”
While Republicans say lawmakers should plan to reintroduce bills next session, Warren argues that’s a waste of time and money. She said there’s no way to short-cut the process, so bills will have to be submitted to the Legislature’s bill writing office again and be printed. Public hearings would have to be held, meaning constituents who have already taken time off work to testify or write a letter would have to do it again.
“I think it’s a very large waste of our resources that we cannot afford,” Warren said. “I don’t think it should be so easy to say ‘ah, we can do it all over.’”
Editor’s Note: An earlier version of this story erroneously attributed the final quote to House Speaker Sara Gideon. The comment was made by Rep. Charlotte Warren. This story has been updated to reflect that.