Once a week, defense attorney Zachary Smith walks into a small room inside the Penobscot County Jail and, with the help of another lawyer, meets with every person who has been arrested over the past two days and couldn’t bail out of jail, usually about five minutes per person.
He is there to represent them at their upcoming bail hearing and asks them, among other questions, what they stand to lose if the court doesn’t release them or adjust their bail to an amount they can afford. An hour later, at 1 p.m., they’ll go before a judge, as part of a process the lawyer says is the most frustrating part of his job.
Maine law gives judges three primary options when setting bail: They can ask defendants to pay a sum of cash to get out of jail; they can release defendants with no cash requirement; or they can allow defendants to go free and only pay a fine if they violate their bail conditions.
What frustrates Smith, he said, is that the first option — making people pay cash to get out of jail — predicates their freedom on their wealth, creating unequal paths through the justice system that are based on financial status. Since people get the money back if they follow all their bail conditions, the idea is that it will keep them from fleeing the area or committing new crimes. But research shows that requiring cash to get out of jail is no more effective, on average, than just releasing them with no financial requirement, and it fundamentally disadvantages those of lesser means.
“It’s irrational,” Smith, 41, said. “I was never naive, or had illusions about anything, but I didn’t think it would be this difficult to get fair results for my clients, especially with bail.”
The inequity is clear in light of two recent cases. Ashley Garboski, who allegedly violated her bail conditions by staying at the Bangor Area Homeless Shelter instead of living with her parents in Belgrade after being arrested for stealing a truck in February, has been held at Penobscot County Jail on a $500 bail that she can’t afford — for more than two months. In Portland, 24-year-old Mark Cardilli Jr., who is charged with murder in the fatal shooting of another man in March, was released last week on a $50,000 cash bail. Neither has been convicted.
Since the 1990s, the number of people unable to bail out has reached unprecedented heights in Maine, filling some facilities beyond their maximum capacity and increasing costs to taxpayers. Because they haven’t been convicted, they’re often referred to as “pretrial” prisoners.
Experts don’t attribute the drop in crime to an increase in pretrial detention. Rather, they say the growth in pretrial detention, which is occurring in rural counties across the nation, stems from systemic practices, particularly a shift toward setting cash bail, according to the Vera Institute of Justice. In Maine, that has prompted some prosecutors, in Kennebec County and on the midcoast, to reconsider how they run their jurisdictions.
After four years of meeting with newly arrested defendants at the Penobscot County Jail, Smith has a panoramic view of who’s struggling to bail out of jail. Many are broke, homeless or struggling with substance use or mental illness, he said, and often can’t come up with even a few hundred dollars for bail. In those cases, their decisions, circumstances or both have propelled them into conflict with law enforcement, sometimes over and over again, making it hard to convince a judge they can be trusted to be released on no bail at all.
It doesn’t always work, but sometimes Smith tells the judge what his clients stand to lose if they can’t make bail. Most often, people are worried about missing work, doctors appointments and child care, he said.
Once, a defendant told Smith that his cat was still inside the car that he was living in when he was arrested, and, when he couldn’t post bail, the lawyer had to rescue it. Others have gotten upset: In one case, Smith watched a man smash the jail’s teleconference video camera because he couldn’t post a $150 bail on a driving offense.
The lawyer has also watched people accused of the same or, in some cases, more serious crimes walk free. They had money.
In recent years across the nation, cash bail has come under fire for locking up the unconvicted poor. Some states, such as New Jersey, have replaced it with a system that assesses defendants based on their risk of reoffending and has not reported a corresponding uptick in defendants failing to appear in court or committing new crimes. In Maine, a similar proposal, by former Sen. Eric Brakey, R-Auburn, failed in a legislative committee in 2015.
The New Jersey results align with research that debunks the idea that making people pay cash to get out of jail reduces the likelihood that they’ll skip court or commit new crimes while awaiting trial, and show that other methods work just as well at getting people to come to court. Unsecured bonds, for instance, only require defendants to pay a cash amount if they violate bail conditions. One 2013 study of Colorado inmates awaiting trial found that they were just as effective as cash bail.
Likewise, a study published last year in the American Economic Review, an academic journal, analyzed 420,000 cases and found that releasing defendants did not have a detectable bearing on their future criminal behavior over the next two years.