“The current system for compensating Bail Commissioners is fraught with potential conflicts and difficulties.”
— 2006 study of Maine’s pretrial system
Five years later, those potential conflicts still exist.
The conflict begins with the way bail commissioners are paid. Not by the county or the state — but by the people who are arrested.
Bail commissioners decide whether a person just arrested can be released for “free” on personal recognizance, or PR, or have to pay bail — cash or a promise to pay cash if they don’t show up for their trial.
If commissioners go though the trouble of taking the phone call from the police and decide the defendant is low-risk and can be released on PR, commissioners can charge up to $60.
If there is a cash bail, commissioners then tack on to that “bill” to the defendant their own fee — $60.
Or they may set a bail at an amount that they’ve calculated will leave enough money in the defendant’s pockets to also pay the $60 fee.
In that instance, said the study, bail may have been set artificially low so the defendant has money left over for the commissioner’s fee.
Another problem — one the bail commissioners complain about — is that they often do the work and then never get paid either because they let the defendant out on PR or the defendant can’t make the bail and is jailed.
“There was one month where I did close to $600 worth of free bail,” said Barbara Guimond, a bail commissioner in Cumberland County.
“You know that sometimes you might not be compensated,” said Richard Ross, a bail commissioner in Piscataquis County who drives 35 miles to the jail in Dover-Foxcroft when he gets called.
“There is to a degree an incentive for [bail commissioners] to set bail in an amount for which the defendant or their family can make,” said Marie VanNostrand, the author of the 2006 study.
She added, “The idea of a bail commissioner as a private citizen who’s compensated by the defendant is unique.”
None of the bail commissioners interviewed for this series said that they have ever been influenced by whether or not they would be paid.
Ross added he doesn’t mind occasionally not getting paid. “There’s a lot more to it than the $60 … I would volunteer to do it even if they just paid my miles, paid my gas.”
Robert Mullen, deputy chief judge of the District Courts, said he would discipline commissioners who abused the compensation system.
“The bail commissioners are told when they first start, and they’re told at the trainings, that their fee is independent of their obligation to process someone’s bail and there will be situations where they don’t get paid,” he said. “If it were brought to our attention that someone was setting bail on defendants’ ability to pay; heard suspicion that they set higher than they should have so they wouldn’t have to go in; if anybody does that and it’s proven that they do that, then they won’t be a bail commissioner.”
The study recommended, “Bail Commissioner compensation be reformed in such a way that it addresses the … documented problems, specifically, removing any financial incentive that could influence bail setting practices and ensuring that Commissioners are adequately compensated for their services in all circumstances.”
Based on the report, in 2009, the Legislature raised the the fee from $40 to $60, but never reformed the system of payment.
“The work kind of ended when the final report came out,” said Mark Westrum, a former sheriff and current administrator of the Two Bridges Regional Jail in Wiscasset who served on the committee.
“The Legislature embraced some of it, but there was nobody pushing to implement the study, there’s no oversight,” he said.
— by Maine Center for Public Interest Reporting
Correction: A previous version of this story incorrectly stated that bail commissioners are not paid a fee when a defendant is released on personal recognizance. A court official said commissioners can charge up to $60 in those cases.