According to the Maine Bail Code, bail is set to “reasonably” ensure the appearance of a criminal defendant, ensure the integrity of the judicial process and ensure the safety of other people in the community.
Nowhere in that stated purpose and intent does it say anything about creating a system where those who can afford to post bail are released back into the community, while those unable to pay must stay in jail — complicating their lives and costing taxpayers money.
But too often with the use of cash bail, that can be the result.
“Money bail is one of the most broken parts of our legal system. It lets the size of a person’s wallet determine whether a legally innocent person accused of a crime can return home or will remain locked up in jail while awaiting their day in court,” Rep. Rachel Talbot Ross testified about a bail reform bill she has introduced. “This unfair and unjust system punishes those without money or resources even before they have had a chance to defend themselves.
There is a strong argument here about fairness and equality under the law. And in a state where jails are overcrowded and between 60 and 80 percent of jail inmates are being held awaiting court dates, there is also a fiscal argument to be made in the debate about cash bail.
Maine needs to find ways to decrease the number of people who languish in jail before their trials, while still working to reasonably ensure defendants show up to court and that the safety of others in the community isn’t compromised. Reforming the use of cash bail can be one piece in a very complicated puzzle.
Last year, Ross, a Democrat from Portland, introduced a sweeping bail reform bill, L.D. 1421, that was eventually carried over to the current legislative session. Since then, the bill has been paired back significantly. The amended version would eliminate cash bail for most Class E crimes — the bottom rung of Maine’s criminal code, which includes offenses such as driving without a license and theft. Importantly, this bill would keep cash bail for crimes related to sexual assault and domestic violence.
The amended bill would also limit some of the factors considered or conditions attached in the bail process, while requiring that other factors, such as the defendant’s mental needs, to be considered.
Meagan Sway, the Maine ACLU’s Policy Counsel, told the BDN that the original bill was “very ambitious” and described the amended version as a “small, incremental step.”
The importance of incrementalism cannot be overstated. Maine does not need to replicate the experience of other states, such as New York, where larger cash bail reforms have drawn backlash.
The cash bail reform proposed in the amended version of L.D. 1421 is modest — not just in comparison to the original bill, but in comparison to the overall changes needed in our criminal justice system.
“Ultimately, it is hard to imagine a more balanced form of legislation,” Andrew Robinson, the District Attorney for Androscoggin, Franklin and Oxford counties, told the Judiciary Committee. “It is narrowly tailored to address low level offenses and does not attempt to enact the broad sweeping bail reform legislation that is currently causing complications in other states.”
Robinson stressed he was speaking for himself, and not on behalf of other prosecutors. He told the BDN that many of the other elected district attorneys he has spoken to are in “philosophical agreement” with the current version of the legislation — though some questions remain.
For example, Penobscot County District Attorney Marianne Lynch said she is “mostly in support” of the idea of removing cash bail for most Class E crimes, with some exceptions. But she does have technical concerns.
“For example if someone fails to report to court, there should be some cash bail set to as a means of getting those people in court,” Lynch said in an email to the BDN. “It is technical and there could be a carve out for this particular charge.”
Cumberland County Sheriff Kevin Joyce also told the BDN that he has some specific concerns about Talbot Ross’ amended bill, but expressed general support and said the bill is “moving in the right direction.”
Joyce said that the criminal justice system is “ripe for, really, a deep look at how we’re doing things,” while cautioning that the pendulum should not swing completely to the side of reform.
The modest approach to cash bail reform, which is slated for a legislative work session on Tuesday in Augusta, offers an incremental step forward. There may be a few more details to work out, but it’s ultimately a step that legislators should take.