They are the kinds of crimes that rarely make the news: disorderly conduct, driving with a suspended license, criminal trespassing.

But Maine’s jails are filled with people accused of offenses like these as they await a day in court. Many of the accused are held longer before trial than any sentence they could expect to get if they were found guilty, simply because they can’t afford bail.

Cash bail is one of the ways our justice system is really two systems – one for those who have money and another for those who don’t. A bill before the Legislature this year would take do something to change that.

L.D. 1703, sponsored by Rep. Rachel Talbot Ross, D-Portland, would eliminate cash bail for most people charged with Class E crimes, the lowest level of criminal offenses. It would also make changes to the list of bail conditions for all defendants, with the goal of decreasing pre-trial detention.

One change would eliminate the routine requirement that people awaiting trial agree to be subject to random searches for alcohol or drugs, which regularly land people back in jail for conduct that would not be a crime for someone else.

And it would require that judges or bail commissioners consider the defendant’s life outside the criminal justice system when establishing the terms of release. Whether the defendant has a job, responsibilities as a caregiver or a health care need (including mental health) that could be better met outside custody would all be factors that would have to be considered before holding someone in jail who has been accused but not convicted of a crime.

These reforms are long overdue.

Maine has one of the lowest violent-crime rates in the country, and a low rate of incarceration in our state prisons, which house people convicted of serious crimes.

But our county jail population has been exploding, and a majority of the people who are being held in custody are people awaiting trial – people who are still presumed to be innocent.

A 2015 study by an intergovernmental task force looked at five Maine jails and found that 60 to 80 percent of people in custody were pretrial detainees.

The task force reported that the average bail for people accused of Class E crimes, the lowest level of offenses, was $500. The average length of stay in jail for those offenses was 31 days, which shows how poverty creates a two-tiered justice system. Would anyone who had access to $500 chose to spend a month in jail?

These long pretrial detentions have even longer-term consequences. Someone who wants to get out of jail is more likely to plead guilty and receive a “time-served” sentence than someone who is waiting for their court date at home. A plea bargain may sound like a good deal to someone in detention, but a criminal conviction, even for a misdemeanor, can affect a person’s ability to attend college, get a job or a professional certificate or maintain custody of a child.

The purpose of bail is to ensure that defendants will show up for their court date, not to punish people who have only been accused of a crime. But the use of cash bail has created an unequal system of justice, where those with money are treated differently than those without, who are disproportionately Black and brown.

Locking people up for minor crimes does not make Maine any safer. Incarcerating people who are awaiting trial on offenses that would probably not result in a jail sentence if those people were convicted causes real harm to them and wastes everyone’s resources.

We can do better, and L.D. 1703 is a good way to start.


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