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.