Editor’s update (Jan. 10, 2021): Rep. Charlotte Warren (D-Hallowell) has resubmitted An Act to Reclassify Certain Offenses under the Inland Fisheries and Wildlife Laws and Motor Vehicle Laws and Increase the Efficiency of the Criminal Justice System for consideration during the 130th Maine legislative session, which convenes this month.
More than 450 pieces of legislation are in limbo, including measures to reform Maine’s criminal justice system, following the sudden adjournment of the Legislature last week because of concerns about the spread of coronavirus.
Some of the criminal justice bills address how juveniles are punished and rehabilitated, whether steps can be taken to reduce the use of cash bail and whether some violations now considered crimes should be reduced to civil offenses.
“The unfortunate thing with the abrupt adjournment is a lot of good work has been put on the side,” said Rep. William Tuell (R-East Machias), who sponsored a bill that could lead to Washington County electing its own district attorney. “No one can really be sure of anything at this point.”
More than 450 pieces of legislation are pending, including bills still in committee, on the House and Senate floors and those that need funding approval from the Appropriations Committee, according to Casey Milligan, manager of the Office of Legislative Information. Working from home because her office is closed due to the coronavirus, Milligan said she’s updating the state database and hopes to have a list of the bill titles ready by the end of the week.
The Criminal Justice and Public Safety Committee has more than 20 bills pending in committee, according to a list provided by the House speaker’s office.
Sen. Shenna Bellows (D-Manchester), a Judiciary Committee member, said the panel “accomplished a significant amount of work” before adjournment, including hours of public hearings and work sessions on a bill to amend the 1980 Maine Indian Claims Settlement Act. The legislation, the result of a task force that met several times last year, is meant to address questions surrounding land use, education, taxation and the criminal justice system, Bellows said.
“What LD 2094 would do is treat the Wabanaki Tribal Nation with the respect and recognition every other tribal nation in the country already receives,” she said.
Bellows also urged that work continue to address problems outlined in a report last year by the Sixth Amendment Center, which found that Maine’s system of providing legal representation to the poor fails to consistently provide high-quality help.
“When we return, we’re definitely going to need to look at reforms of the Maine Commission on Indigent Legal Services,” she said, adding work can continue regardless of when or whether lawmakers return to Augusta this year.
When Democratic and Republican legislative leaders decided to end the session March 17, they indicated in a joint statement they were “temporarily ending the legislative session” but gave no timetable for a return. Coronavirus cases in Maine have steadily climbed since, reaching 155 on Thursday, despite decisions to close schools, ban gatherings of more than 10 people, restrict restaurants to take-out service and encourage people to work from home.
“Suspending the legislative session to mitigate the spread of disease in our communities is the responsible thing to do,” said a statement from Senate President Troy Jackson (D-Allagash), House Speaker Sara Gideon (D-Freeport), Senate Minority Leader Dana Dow (R-Waldoboro) and House Minority Leader Kathleen Dillingham (R-Oxford).
Dow said given the pandemic and likelihood of an economic downturn, lawmakers and state agencies need to be prepared to come back into session to cut the budget. And if any legislation costs money, Dow said bill sponsors will need to identify a funding source.
“Common sense says to me we’re going to be below budget (projections),” he said, referring to revenues. “If it’s something that requires money, it’s going to have to be very important.”
Before adjourning, lawmakers passed a $73 million supplemental budget, much of it earmarked for efforts to address the coronavirus pandemic, according to the Bangor Daily News.
Lawmakers also passed a measure ensuring tribal members have protections under the federal Violence Against Women Reauthorization Act, Bellows said. In addition, the Legislature passed LD 1953, which means a driver’s license can no longer be suspended for a person’s failure to pay fines for an offense not related to driving, said Meagan Sway, policy counsel for the American Civil Liberties Union of Maine.
Gov. Janet Mills indicated she intends to call lawmakers back into special session “as soon as is safe and prudent” and “that it is her strong preference that during such a session priority, attention be given to only the most pressing matters.”
If they come back this year, lawmakers can take up any of the pending measures. Otherwise new legislation would have to be proposed at the start of the next session in January, Bellows said.
Bail reform, juvenile justice, mental health
From the ACLU’s perspective, several pending bills could make significant changes to the state’s criminal justice system at a time when there’s appetite for change, Sway said.
Following last year’s legislative session, Democrats who control the House and Senate set up task forces and commissions to study how the state treats juveniles accused and convicted of crimes, whether actions can be taken to reduce the number of people in county jails and how to divert people with mental illness from jails to community-based services.
In the past, Sway said, there was more discussion of “how do we throw the book at someone,” but now the conversation is focused more on “how do we keep the community safe.”
“I have a lot of hope folks are energized to change the system,” she said. “I really do feel like the conversation has shifted.”
Among the bills the ACLU hopes to see enacted:
- LD 1421, which would eliminate cash bail for most low-level crimes. Sway said the “poorest of the poor” are disproportionately punished because they can’t come up with $100 or $200 to make bail.
“You shouldn’t be punished when you haven’t been convicted of anything because you can’t pay your way out,” she said.
The bill was tabled by the Criminal Justice and Public Safety Committee on March 12.
- LD 1684, which aims to reduce the number of children in the juvenile justice system, including preventing children under 14 from being incarcerated. It received a divided vote in the Judiciary Committee and has not been sent to the House floor for consideration.
- LD 803, which seeks to strengthen community-based mental health services so people experiencing a crisis can get help rather than be jailed. Bill sponsor Rep. Charlotte Warren (D-Hallowell) presented an amended version of the proposal to the Criminal Justice and Public Safety Committee on Feb. 24, following months of work by the Mental Health Working Group. It is pending in committee.
Since January, the Maine Monitor has also tracked and reported on other legislation as part of a series on fairness in the state’s county court system. Many of those bills also are pending.
Washington County DA
For years, law enforcement, government officials and even a leading defense attorney have felt it’s time for Washington County to get its own district attorney. More than 40 years ago, the state cut the number of district attorneys from 16 to eight, combining Washington and Hancock counties in one prosecutorial district.
For a variety of reasons – the increasing severity of crimes related to drug use, a logjam of cases, a lack of staffing to help law enforcement bring cases and a large Native American population with its own set of tribal laws – Washington County officials worked to bring a bill forward this session to start the process of separating the district.
Tuell sponsored LD 1967, which would call for Washington and Hancock county residents to vote in November on whether they think Washington County should have its own DA. When the Legislature adjourned, the bill had received bipartisan support from the Judiciary Committee but had not gone to the House floor.
Because of the need to put a question on the November ballot, Tuell hopes the Legislature reconvenes no later than early September. He’ll also need to push to make sure the bill is taken up, especially if the session is limited.
Tuell understands that Maine hasn’t hit its peak of coronavirus cases and that there’s no way of knowing when things will return to normal.
“I never thought two weeks ago I’d be having this conversation,” he said. “This whole thing has just flipped everything on its lid.”
Money for court reminders
One bit of positive news for those pushing for criminal justice reform came in the supplemental budget, which included about $42,000 to help pay for a project manager to oversee the implementation of a text messaging system for court appointments.
Although numerous proposals for funding were stripped from the budget to boost reserves because of the uncertainty of the coronavirus, money for part of the position was approved for the fiscal year that begins July 1. Other money that was requested – $15,099 for this fiscal year – was removed from the final legislation.
Supporters of the text message notification system say it has reduced missed court dates in other states by 25 percent or more. A 2018 study by the ACLU showed that 9,000 people in Maine each year are held in county jails for missing a court appointment.
Maine Court Administrator Ted Glessner said earlier this month that the courts intend to hire a project manager to oversee the text messaging system, which will be part of technological upgrades at county courthouses. The upgrades will go online first in Penobscot and Piscataquis counties, which will also serve as a pilot project, he said.
Civil vs. criminal
At the start of the legislative session in January, district attorneys across Maine hoped lawmakers would pass a bill to change some criminal violations to civil offenses.
Rep. Warren, the Hallowell Democrat who sponsored that bill, told members of the Criminal Justice and Public Affairs Committee in February that she agreed to sponsor LD 2043 as a way of reducing caseloads for district attorneys. She said in 2018 that 77 percent of arrests were misdemeanors, according to a statistical analysis by the Council of State Governments.
She characterized that as “a significant driver in our very clogged judicial system.”
Warren presented an amended version of the bill at a public hearing that proposed to make about a dozen changes to inland fisheries and wildlife laws and changes to about a dozen motor vehicle laws.
For example, fish and wildlife violations that are now criminal but would become civil include practicing falconry without a permit, holding field trials for sporting dogs without a license and hunting migratory game birds with a shotgun capable of holding more than three shells.
For motor vehicle violations, the bill proposes to reduce from crimes to traffic infractions things such as operating a motor vehicle on a public way or parking area without being licensed; failing to obtain a license after establishing residency for more than 90 days; and displaying or possessing a revoked, mutilated, fictitious or fraudulently altered driver’s license or identification card.
Andrew Robinson, president of the Maine Prosecutors’ Association and district attorney for Androscoggin, Franklin and Oxford counties, said all district attorneys support the bill because “a crime should be something the average person would think is a crime,” according to his written testimony.
“Taxpayer dollars should be focused on prosecuting serious criminal activity,” he wrote. “All of the Class E crimes that we are proposing to make civil violations or traffic infractions are currently handled with a fine resolution. This will not change the outcome, but will change the process and allow the cases to move more efficiently through our system.”
Defense attorney Walt McKee presented testimony in favor of the bill on behalf of the Maine Association of Criminal Defense Lawyers. McKee said as it is now, someone convicted of these crimes will have a criminal record “which can follow them for the rest of their lives.”
“This bill makes the most sense of any bill this session in terms of how it addresses the overcriminalization that has crept into our system,” he wrote. “A person who commits these kinds of minor offenses should be subject to civil penalties, not the full-blown power of the criminal justice system.”
The bill is pending in the Criminal Justice committee, having been tabled during a Feb. 26 session.
Task force findings
Last summer and fall, numerous task forces and commissions met to come up with recommendations for changes to various parts of the criminal justice system.
The Pretrial Justice Reform Task Force, whose members included judges, attorneys, advocates for victims of domestic violence, and others, issued a December report with more than 30 recommendations.
The task force supported full funding to oversee the text messaging system that was included in the supplemental budget, and the group’s debate over whether to eliminate cash bail helped inform pending legislation on the topic, said Julia Finn, legislative analyst for the Judicial Branch.
No other recommendations – including better data development, and collection and racial justice training for law enforcement, corrections officers and others – were put forward in legislation.
“Judicial Branch leadership has not begun to consider legislative initiatives for the 130th Legislature, convening in January,” Finn wrote in an email.
The future of an examination of the state’s criminal justice system by the Council of State Governments is also unclear. Since 2007, 35 states have completed the Justice Reinvestment Initiative, a national effort to reallocate existing resources so that prison space is used for “people convicted of serious offenses” while using other money for alternatives to incarceration, according to the Pew Charitable Trusts, a partner in the effort.
Sheridan Watson, a spokesman for the Council of State Governments, said they were in talks with legislative leaders about moving forward, “but those have concluded now due to the legislative session ending.”
With the future of so many bills uncertain, Bellows said she hopes lawmakers reconvene at some point this year. If they do not, she believes legislators elected in November will start the session next year with a spirit of wanting to follow through on initiatives left undone.
“We can’t allow this crisis to mean good policies are forever forgotten,” Bellows said.