Marion Anderson needed money to buy the drugs that would stop her from feeling sick, so she agreed to help a friend rob someone the evening of May 23, 2016. But being broke also meant she didn’t have the $2,000 to bail herself out of jail after she was arrested for her role in the crime. She would have to fight her case from a cell at the Penobscot County Jail in Bangor.
No one knows whether having money to bail out would have changed the course of what happened next, but, almost exactly three years later, Anderson believes that at the very least it would have given her more time to consider how best to resolve her case.
It wasn’t the first time that addiction spurred her to do something that put her in jail, so she knew it could take months for her case to move through the court system while her attorney and the district attorney’s office negotiated the terms of a plea deal, during a period of the criminal process referred to as the pretrial stage. Like nearly all criminal defendants, she did not plan to take her case to trial.
That was in part because she knew she was guilty for some wrongdoing and was willing to take responsibility. But she didn’t feel responsible for all the charges brought against her. In particular she didn’t believe she should have been charged for an assault that her partner committed when the robbery didn’t go as planned, she said. Under Maine law, accessories to a felony can be charged with a crime even if they personally didn’t commit it.
Years later, Anderson’s decision not to fight this charge haunted her, more than any of the other charges on her record, because it painted her as violent.
At the time, as she sat behind bars, “There [was] this feeling of, ‘How can I get out of this? What’s the quickest and easiest way to get out of this?’” Anderson, who is now 38 and lives in Brewer, said. “It was never, ‘How are these charges going to impact me or impact my record?’”
When defendants like Anderson are unable to bail out of jail during the pretrial stage, their detention can influence the path of their case as it moves through the courts. More often, being held in jail before a conviction results in less favorable outcomes for defendants than if they were fighting the case while living at home, according to research that examined the outcomes of those held in jail prior to their case being resolved versus those who were released.
That’s because being in jail is psychologically taxing and creates tactical disadvantages for defendants, applying pressure on them to quicken the pretrial experience by pleading guilty and limiting their ability to play a role in their defense. Being incarcerated, experts said, means defendants have a harder time reaching their attorneys, are cut off from the support of their family, can’t continue working to support their defense and can’t take steps to rehabilitate themselves in the eyes of the court, which could potentially lessen their sentence.
“The first concern I have is that you have factually and legally innocent people feeling pressure,” said Thea Johnson, a professor at the University Of Maine School of Law who specializes in plea bargaining. “And the second concern is that even when people … are not innocent, they should still be allowed to fight their case — and you can’t fight your case inside.”
The number of people facing pressure is likely greater now than ever before in Maine, given an unprecedented number of pretrial detainees. Experts have said the growth over recent decades is primarily a function of the court setting more unaffordable cash bails, not an increase in crime. (In fact, crime has been falling in Maine since 2011.) Detaining people based on their financial status also gives people who are wealthy more of an advantage in building their criminal defense, Johnson said.
The majority of crime in Maine is fueled by drug use, which was the case for Anderson. Growing up in Milford, she started drinking alcohol as early as age 12, she said, around the time she attended a specialty school to address behavioral challenges. By her early 20s, she had been living on her own for years and was using harder drugs, to the point where she would experience withdrawals if she didn’t use opioids. She maintained her addiction while balancing a handful of jobs — roofing, warehouse work, waiting tables — and caring, as best she could, for her young son.
But off and on, “I would have a good job, and use would get me,” she said. “I’d get arrested and lose that job.”
It was mostly for petty crimes. Her record includes convictions for misdemeanor theft, drug possession, trespassing and disorderly conduct, all of which were related to something she did while high or to buy drugs, she said. Indeed, most of the offenders cycling through Maine jails are there for low-level offenses, some of which may not carry the possibility of jail time at all. Researchers who examined a group of low-risk defendants in Kentucky in 2013 found that those who were held in jail were five times more likely to receive a jail sentence than similar defendants who awaited trial in the community.
Johnson, who was formerly a public defender in New York City, said some offenders held on bail realize they might end up doing more time waiting for their cases to move through the courts than if they simply pleaded guilty early on in the process, and accepted a sentence that would likely be shorter or for the time they already served. For that reason, one study found that misdemeanor offenders are 12 percent more likely to plead guilty if they are held on a cash bail they can’t afford.
But by rushing into a plea, defendants trade away the time it takes for their attorneys to investigate their cases and build an effective defense. Very little is known in the early stages of a criminal case, and the ensuing process might turn up facts that could lessen the charges or enhance a defendant’s bargaining position during the plea deal process, Johnson said.
“If you have a good lawyer and can play the hand out, we can craft sentences that meet the law but also may have a hope of moving the person on without incarceration,” added E. James Burke, who is a criminal defense professor at the University of Maine School of Law and a practicing defense attorney.
Additionally, incarcerated defendants have a harder time participating in this process. They aren’t, for instance, able to demonstrate during the pretrial stage that they can be trusted to keep living in the community by getting a job, seeking treatment, or going to counseling, he said.
And being in jail means they can’t access their lawyers as easily. A Maine report published last month that evaluated the state’s system for providing indigent legal services cited an unidentified sheriff who complained that, in his county, as many as 25 percent of assigned attorneys didn’t visit their clients in jail to prepare their cases, and he was concerned about inmates who had stopped calling their attorneys because some didn’t take calls from jail.
Burke cited a recent case in which his client, who was homeless in Portland, had been arrested for assaulting someone with a can of mace and for disorderly conduct. Luckily, his client was released, allowing Burke to investigate the charges over the next six months, he said. During that period, the lawyer said he acquired security footage that proved his client was acting in self defense, prompting the state to dismiss the more serious assault charge and offer his client only a fine for the disorderly conduct, he said.
Had he been held on bail, Burke said, “He probably would have done 45 days or more before we could get into the court,” where he might have pleaded to the assault charge simply to get out of jail on the time he’d already served.
Criminal convictions follow defendants long after they’ve served their immediate sentence, he said, meaning decisions made during the pretrial period have lasting consequences. Finding a way to “keep the record lesser” could mean “that the next time they show up [in court], they don’t have the huge criminal record that makes it look like they’re a huge serious criminal.”
Anderson often showed up back in court because she would relapse into drug use and get in trouble with the law again, she said.
“Of course, you’re ashamed,” she said, reflecting on how it feels to cause others harm because of her addiction and then be locked in jail. “And you sort of internalize it as a reflection of who you are.”
As her record grew longer, she rarely had the will to play the hand out. Even when she knew she had done something wrong, she felt increasingly defeated by the start of her criminal case.
She received her first prison sentence for stealing a few thousand dollars from her parents’ safe to buy drugs. In late May 2016, she found herself facing another set of serious charges.
In need of drugs, Anderson made what she later described as a poor decision: She agreed to help her friend mug someone, she said. Her role was to drive her friend to a dark street in Old Town under the auspices of conducting a drug buy, according to what she later told a police detective. Then, her partner in the crime would surprise the man by demanding he turn over his money.
What Anderson didn’t realize would happen, according to court records, was that after her friend asked him to empty his pockets, the friend would strike the man with a tire iron, causing him injuries that required hospital treatment, according to court documents. Anderson sat in the driver’s seat, horrified and panicking, she recalled. Drug use had left her desensitized enough to ignore the consequences of committing a robbery, but the unexpected act of violence outside her car window disturbed her, she said.
Anderson and her friend fled and were arrested separately a few days later. The victim later identified the person who assaulted him as Anderson’s friend, who pleaded guilty to the assault.
What came next is what bothers Anderson to this day. She knew she would likely go back to prison for the robbery, but she was also charged with aggravated assault. That’s because, even though she didn’t physically wield the tire iron, she helped engineer the plot that put the victim in physical danger.
“Contrary to my record, I’m not a violent person,” she said.
Anderson hasn’t been in trouble with the law since 2016 and now has a job helping people addicted to drugs and with serious mental illness maintain their recovery. Today, she still wonders what might have happened if she could have paid her $2,000 bail and worked with her attorney to see if the prosecution would drop the assault charge. Instead, she accepted a plea deal that sent her to prison for 18 months and placed her on probation for three years afterward. It still took two months, which she spent in jail, before she pleaded guilty.
Normally, felony cases take much longer to move through the courts, but she couldn’t bear the waiting, she said.
“If I had the financial ability to pay my bail, and pay for my own counsel, and be in the community being productive, I think it would have changed the case,” Anderson said.
It’s unclear if it would have changed the outcome.
“Would she have received a different offer had she not pleaded guilty at that moment? That’s absolutely not a guarantee,” said Tracy Collins, the assistant district attorney who prosecuted her case. She is now in private practice in Bangor.
Generally speaking, she said, “the prosecutor takes into account all the circumstances, and that would include the level of participation that person had in the crime, the injuries to the victim. Then the prosecutor works with the defense attorney to determine an offer that makes sense, taking drug use and mental illness into consideration, Collins said.
Seth Harrow, Anderson’s court-appointed attorney, did not remember the details of the plea negotiations three years later, but he said he wouldn’t have allowed his client to plead guilty to something he felt was unfair.
Anderson finds county jails worse than prison, especially during the pretrial stage. What limited programming exists is typically reserved for inmates who have been convicted, she said. The days pass slowly. And yet the flow of newly arrested inmates, many of whom also suffer from addictions and mental illness, keep the facility in a state of constant unrest.
“I’d rather spend a year in prison than six months in county jail,” she said. Indeed, she was released from prison about a year after she pleaded guilty.
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