In January 2004, a Maine commission charged with improving the corrections system noted a big problem. The number of prisoners in state prisons and county jails had “grown far beyond expectations in recent years, stressing the capacity of existing facilities and showing no sign of slowing down,” stated the initial report of the Commission to Improve the Sentencing, Supervision, Management and Incarceration of Prisoners.
Its members then are familiar faces today: then-Rep. Janet Mills, who is now governor; Chief Justice Leigh Saufley, who remains chief justice of the Maine Supreme Judicial Court; then-Sen. Ethan Strimling, who recently served Portland as mayor; and several others.
Even though the crime rate was waning, the report stated, more people were filling facilities due to sentencing practices, a lack of programs to monitor people in the community, and “inadequate treatment programs” for people with substance use disorders and mental illness. The results were dire: bed shortages, increased risks to inmates and staff, and “skyrocketing costs.”
The findings prompted a response: another state commission, which started meeting in 2005. That commission marked the second of at least four similar committees over nearly 15 years, the latest of which is expected to produce a report next month.
While many different groups have examined aspects of the criminal justice system over the years, these committees have continued to zero in on and recommend ways to stem a surge in the number of Maine people behind bars who have not been convicted and, therefore, are entitled to the presumption of innocence. They have also continued to mention how Maine gathers little data on its criminal justice system, hampering officials’ ability to understand the problem and how best to fix it.
Prior to 1993, about 40 percent of Maine jails were filled with unconvicted people. They are referred to as “pretrial” because their case is still in progress. By 2005, however, jails reported that between 60 and 70 percent of their populations were pretrial, the 2006 commission found. The uptick helped to nearly double the statewide average daily population of inmates compared with the decade prior.
Despite the committees’ warnings, the number of pretrial prisoners in Maine continued to grow.
Now, as the latest panel, called the Pretrial Justice Reform Task Force, gathers again this month, its members say they still don’t have enough specific information about pretrial prisoners to chart a clear way forward, echoing the findings of committees before them. For instance, in which jurisdictions are the most people arrested and unable to post bail? Why?
In general, “There are things we know work [to reduce the number of pretrial prisoners],” said Emma LeBlanc, a researcher with the American Civil Liberties Union of Maine who has attended the task force meetings.
“We don’t need data to make those changes. We probably do need data to convince people” to implement them, LeBlanc said.
The need for more information is a common refrain. In 2005 and 2006, the Corrections Alternative Advisory Committee — an offshoot of the original 2004 sentencing reform committee — explored solutions to alleviate pressure on the state’s correctional facilities.
Judges rely too frequently on setting unaffordable cash bail for defendants who could live safely in the community if they participated in supervision programs, according to the report. It recommended that the state expand those programs and develop tools to help judges assess which defendants would be a good fit.
At the same time, there was “limited Maine-specific data” on pretrial prisoners, such as their level of risk to the public, according to the final report. On average, pretrial prisoners spent an average of 65 days in jail but, without more data, it was difficult to pinpoint the “underlying causes.”
“Leadership is needed to help drive … more cost effective initiatives,” the report stated.
At the time, Denise Lord was the deputy commissioner of the Maine Department of Corrections and sat on the committee. During an interview last spring, she recalled how the rise in pretrial detention didn’t emerge as a high priority for funding.
The rights of unconvicted versus convicted people didn’t seem to influence the discussion then as it does today, she said. Back then, the committee seemed more concerned with operational problems. The state was also headed into a financial recession.
Lord characterized the committee’s work as a missed opportunity. “The existing financial structure was such that you couldn’t do it without more money, and we didn’t have more money,” she said. The report’s recommendations went mostly unheeded.
The next year, in 2007, then-Gov. John Baldacci created the Board of Corrections, which oversaw county jails. It remained in place until 2015, when then-Gov. Paul LePage didn’t appoint members, and it dissolved. Meanwhile, the escalating cost of local incarceration, a nearly $90 million-a-year operation today, has forced the sheriffs who oversee the jails to repeatedly beg lawmakers for financial relief.
In 2015, Saufley, the chief justice, established the Pretrial Justice Reform Task Force, making the rise of pretrial prisoners its focus. Using data from a limited population study of five county jails, the group issued a slate of recommendations to the Maine Legislature, which adopted all that did not require any funding, according to Anne Jordan, criminal process and specialty dockets manager for the state court system. Jordan has served on the last two pretrial task forces.
The 2015 group still hoped that some of the recommendations would make a difference, Jordan said. For instance, based on the committee’s recommendation, bail commissioners no longer require defendants to submit to random drug and alcohol tests as part of their bail conditions. Bail commissioners set a person’s bail at the time of their arrest.
The committee believed the move would prevent defendants from returning to jail on violations related to their substance use and “cause jail population to plummet,” but it didn’t, Jordan said. Now, “the preliminary question is: What is the problem for Maine? What is the data that we have or don’t have that could help us structure responses?”
Elsewhere in the country, a bevy of research has illuminated the causes and effects of pretrial detention. The research has primarily focused on how inconsistent practices and requirements for defendants to put up cash to bail out of jail contribute to the rising number of unconvicted prisoners and perpetuate economic and racial inequalities. Like Maine, rural places elsewhere have seen an increase in pretrial detention.
Based on this research, some states have eliminated or reduced cash bail, resulting in mixed success.
New Jersey significantly changed its practices in 2017. Now courts make decisions about defendants’ bail following an evaluation of their risk to the public, not their ability to pay cash. As of October 2018, the state reduced its overall jail population by 6,000 compared to the same month in 2012, and “concerns about a possible spike in crime and failures to appear did not materialize,” according to a 2018 evaluation report. However, the state is struggling to pay for the increased costs of community supervision programs.
Last winter, Saufley reconvened the Pretrial Justice Reform Task Force that she originally established in 2015. It has met twice this month in Augusta, most recently on Monday, and is weighing a list of nearly 70 proposals, ranging in cost and scale. Now committee members are calling for more Maine-specific information. They also want to know more about how to prevent the criminal justice system from disproportionately incarcerating people of color, LGBTQ people and the poor.
“It’s mostly deja vu, but I really like some of the mind power around the table. We’ve had some really good committee-level conversations,” said task force member Elizabeth Simoni, who is director of the nonprofit Maine Pretrial Services, which contracts with counties to supervise criminal defendants so they don’t have to sit in jail.
The group may recommend the decriminalization of certain drug-related activity in order to stem the flow of people into jail, which is bold, she said. She doubts, however, that the group will endorse “broad-based reform of structure” for handling people who have been arrested, such as eliminating cash bail, without more information first.
During Monday’s meeting, members agreed that, in general, Maine should reduce the use of cash bail but suggested a separate task force — one that wasn’t composed of volunteers working with limited data, perhaps — to study the implications of eliminating it entirely.
“Did we kick the can [down the road], though?” Simoni asked.
“I thought that was what we were doing when we sat down,” Cumberland County Sheriff Kevin Joyce said. “So we’re basically coming up with an answer that we should study it again?”
Indeed, the group has pressed for more resources and data as a top priority to accomplishing meaningful changes. At the first meeting on Nov. 12, it reached a lively consensus around a proposal for “robust data development and collection.”
It would be helpful to know, for example, how often police officers, by department, arrest a person instead of issue them a criminal summons — just a citation to appear in court — and whether that has changed over time, Simoni said.
Similarly, Maine does not track specific information about bail amounts — the average cash amount for specific criminal charges — and whether that changes based on the courtroom and the demographics of a person standing before the judge, Jordan added.
At one point, the conversation prompted Simoni to read aloud a statement that LeBlanc, the ACLU researcher, included in a committee report.
“Only data will allow us to break the futile cycle of task forces impossibly charged with crafting policy reform on the unstable foundation of anecdote and opinion,” Simoni said, quoting LeBlanc.
The room fell quiet, then rippled with quiet laughter and sounds of agreement.
Maine Focus is a journalism and community engagement initiative with the Bangor Daily News. Questions? Write to firstname.lastname@example.org.