An Auburn lawmaker is proposing a bill to eliminate Maine’s cash bail system and replace it with a risk assessment model that would allow low-risk individuals to be released until their criminal charges are resolved.
Republican Sen. Eric Brakey said the new system, modeled after a law that passed last year in New Jersey, would alleviate jail overcrowding, reduce jail costs and keep people who can’t afford bail from having to sit in jail until trial.
The proposal, however, may face opposition from prosecutors.
“This is totally illusory,” said Cumberland County District Attorney Stephanie Anderson, who also heads the Maine Prosecutors Association. “Nobody is sitting in jail because they can’t afford bail. If someone should legitimately be out, their bail gets lowered. I don’t understand what the problem is.”
The theory behind the bill is simple: Someone considered a low risk of flight would be released until a trial or other resolution of the charges. Those deemed a threat to public safety would be kept in jail until their case is settled. Brakey said most people in jail now would fall in the first category.
He said his bill makes sense from a civil libertarian point of view, but it’s also practical. Roughly two-thirds of the inmates in Maine’s county jails are people awaiting trial, which has led to overcrowding and increased spending in jails.
Anderson agreed that the percentage of pre-conviction inmates is high, but not for the reason Brakey thinks.
“There is nobody sitting in jail pre-conviction who isn’t either a high risk of reoffending or flight, or who hasn’t already violated bail or probation,” she said. “The problem with people being in jail before they are convicted is that they have already shown they can’t adhere to court orders.”
Cumberland County Sheriff Kevin Joyce agreed with Anderson that many pretrial inmates end up back in jail because they violate bail conditions, not because they can’t afford bail.
But he also said county jail reform is needed, and if Brakey’s bill helps spur the discussion, he’s supportive.
“The whole system needs to be looked at,” he said. “As a police officer, I support bail, but as the head of a county jail, I question it. It costs me $112 a day to house someone. We need to ask, ‘What are (taxpayers) willing to pay?’ ”
MORE PRETRIAL SUSPECTS IN JAIL
Bail is commonly used to ensure that a defendant returns for the next court appearance. The amount varies greatly depending on the type of crime and the defendant’s criminal history.
In theory, someone who puts up a substantial amount of money is less likely to skip court.
Anderson, however, said even a small amount of bail means defendants have “skin in the game.”
Brakey’s bill does not have language yet because it’s still being drafted.
He said he’s relying heavily for details on Elizabeth Simoni, director of Maine Pretrial Services, a nonprofit that provides legal services.
Simoni said last week that she hasn’t started crafting the bill language. She plans to collaborate with the Maine Judicial Branch and others.
Simoni, who also sits on the board of the National Association of Pretrial Services, said the inability to post bail is an increasingly common problem in many states.
“The shift in incarceration has certainly been more toward pretrial clients, and that’s something that needs to be addressed,” she said.
POOR DEFENDANTS AT DISADVANTAGE
Although the idea of eliminating bail is new to Maine, it has been debated elsewhere.
Alexander Shalom, a senior staff attorney with the American Civil Liberties Union of New Jersey, said the reform bill there was created after an eye-opening report about “who was in jail and why” in New Jersey.
“We ended up forming a committee and realized that we couldn’t just tinker. We needed to reform the system from the ground up,” Shalom said.
The measure ended up with strong bipartisan support and was signed last summer by Gov. Chris Christie. It doesn’t go into effect until January 2017, Shalom said.
Mary Pyffer, a prosecutor in New Jersey’s Gloucester County, called the new law “common-sense reform.”
“It keeps dangerous offenders with a history of violence in jail until the time of their trial. On the other hand, nonviolent, low-risk offenders could be released from jail under certain stipulations without having to post money,” she said. “It didn’t make sense to house, feed and provide medical care for inmates that don’t pose a risk to society or a flight risk. Poor, nonviolent, low-risk offenders were at a disadvantage since they lacked funds to post bail money.”
SUPPORT FOR REFORMING SYSTEM
Alison Beyea, director of the ACLU of Maine, said Brakey’s bill is a good place to start a conversation about reform.
“We believe that Maine needs to rethink its criminal justice system,” she said. “We lock up far too many people for far too long. Right now, many people are spending time in jail not because of any crime, but because they simply can’t pay the bail fee.”
Rep. Mark Dion, D-Portland, a former Cumberland County sheriff and current defense attorney, said the idea of eliminating cash bail may be worth discussing, but he stopped short of endorsing it.
“You don’t want to compromise public safety,” he said. “I certainly understand the sentiment, but rarely does policy move in a straight line.”
In theory, Dion said, the cost savings could be significant. He said it costs more than $100 per day to keep an inmate locked up, and county jails already have been feeling the financial weight of housing pretrial inmates. Because of ongoing funding problems in the state’s jail system, several jails are facing shortfalls before the end of the fiscal year and have asked the Legislature for $2.5 million in emergency funding that Gov. Paul LePage has said he does not support.
As of Jan. 23, Joyce said, 56 of the 149 pretrial inmates at the Cumberland County Jail were there on misdemeanor charges. If some were released, he would certainly save money, but he wonders if that is in the public’s best interest.
“You can get tough on crime, but it will cost you,” he said. “Do we lock up every person who commits a misdemeanor?”
ASSESSING RISK AND ALTERNATIVES
The key to Brakey’s bill could be how the risk assessment model is developed.
Assessing risk is not an exact science. New Jersey officials said their model is data-driven and meant to take away any biases, but it also allows judges to retain discretion.
Simoni said judicial discretion will be essential in any reform effort in Maine.
Anderson, the district attorney, said she has no problem with risk assessment, but sees that as entirely separate from bail.
“It’s easy for people to look at jail numbers and say ‘this is terrible,’ but what’s the alternative?” she said. “What are you supposed to do when someone commits another felony after you release them?”
Dion said one way to keep tabs on a pretrial inmate outside of jail would be electronic monitoring, which is already used in some cases. Dion said the cost of electronic monitoring would be around $10-$15 per day for an inmate, far less than the $100 that a jail bed and meals cost.
If nothing else, Brakey said his bill has generated a healthy discussion.
“The most common response has been, ‘Huh, that’s interesting. Let’s think about it,’ ” he said.