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.
Design flaws aside, there are issues with the process, too. In Smith’s experience, the court defaults to setting bail when it’s supposed to be the exception. That’s because defendants are legally innocent, which was why the founders enshrined a prohibition against excessive bail in the Eighth Amendment.
“What seems to be the practice with cash bail is [that amounts are] more determined by the charges, not the individual’s ability to put up that money,” Smith said.
At a bail hearing, the court is supposed to weigh if the defendant can be trusted to await trial in the community, while keeping in mind their legal innocence. (Notably, defendants who bailed out of jail immediately after being arrested skip this process.) For that reason, Maine law requires judges to set the “least restrictive” bail, either releasing the person on no financial conditions, called a personal recognizance bail, or by setting a cash bail they are able to afford. But in Maine, the number of defendants held on bail has surged in recent years, indicating that bail is often set beyond what people can pay.
Cash bail amounts have been rising since the mid-1980s, when lawmakers decided that the courts should be allowed to consider a defendant’s threat to public safety when setting bail. Before, the court only considered their flight risk.
But erring on the side of caution has allowed more people to be held on monetary bail, according to a review of national bail trends by the Texas Public Policy Institute, which found that, since 1990, judges have been setting cash bails more often and at higher amounts.
Maine doesn’t keep precise statistics on bail. But a 2015 study of five Maine county jails, commissioned for a state task force that studied Maine’s increase in pretrial detention, found that felony bails typically ranged between $1,000 and $50,000. Misdemeanor bails tended to be lower but can still burden defendants, who tend to be poor. The most common bail amount for a Class D misdemeanor in 2015 in Maine was $500, the study found.
That is beyond what 40 percent of Americans said in 2018 is the maximum amount they could afford in an emergency, which was $400, according to a report from the Federal Reserve.
Jessie Gunther, a former district court judge who retired from the bench in Penobscot County in 2012, said Maine judges tended to use cash bail only when they felt it was necessary.
“Everybody was trying to limit the people behind bars to those who were a real threat to public safety,” she said. “Most of the time the reason you set cash bail was that people hadn’t paid fines or they didn’t show up [to court], so you had to do something to make sure they came the next time.”
Case-by-case judgments preserve a human touch in a system where every case is slightly different. That has a downside: The bail amount someone is granted sometimes depends more on the judge or the prosecutor than the defendant, studies have shown. Insidiously, these case-by-case decisions can stem from inaccurate stereotypes and racial bias, and one analysis linked having black skin to higher bails.
“Setting bail is one of the most important points of the criminal justice process for people, and the carelessness by which it is done is shocking,” said Tina Nadeau, executive director of the Maine Association for Criminal Defense Lawyers and an attorney in Portland. “It depends on whose eyes are on the file.”
Earlier this month, Kennebec County District Attorney Maeghan Maloney announced a new policy for setting bail that aims to standardize the process. Prosecutors in her office will now avoid recommending cash bail unless the defendant is categorized as high risk before their bail hearing, using a questionnaire that was developed and is administered by the nonprofit Maine Pretrial Services. Defendants who receive a medium risk score on the survey will be released and supervised in the community by the nonprofit as they await trial.
“People shouldn’t be serving their time before they’re convicted unless there’s a risk to the public,” Maloney said at a May 2 press conference.
Even under that new policy, low- and medium-risk defendants could still spend up to 72 hours in jail between their arrest and their court date because a bail commissioner, a trained contractor who sets bail at the time of arrest, sometimes over the phone, has set a cash bail beyond what they can pay.
In Penobscot County, Smith could be the first lawyer these defendants will see. In the few minutes they have, their first questions aren’t usually about the legal process that’s about to unfold, he said, but about how they can get back to their lives on the outside.
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