The Problem With Bail Part I

Bail reform has been a hotly discussed subject for some time. But what is bail and why does it need reforming? In Maine, bail is defined as “the obtaining of the release of the defendant upon an undertaking that the defendant shall appear at the time and place required and that the defendant shall conform to each condition imposed in accordance with section 1026 that is designed to ensure that the defendant shall refrain from any new criminal conduct, to ensure the integrity of the judicial process and to ensure the safety of others in the community. Generally, bail becomes an issue once a person has been arrested for a crime. For the majority of crimes in Maine, a bail commissioner can set bail once someone is arrested. So who is a bail commissioner? The only statutory requirement is that he or she be a resident of Maine and be appointed by the Chief Judge of the District Court. Once someone is arrested, the bail commissioner is called and goes to the jail. The bail commissioner then makes a decision on what the bail will consist of. The main issue in bail is whether a cash bail will be required. Officially, the bail code requires that every person entitled to bail be released on either a personal recognizance bond (PR) or an unsecured appearance bond. The distinction between the two is virtually non-existent. Either type of bail means that the individual will not be required to post any money in order to be released from jail. So why do so many people sit in jail awaiting trial? Because conditions of bail (including cash) may be imposed if the Judge or bail commissioner believes that a PR or unsecured bond will not reasonably ensure that the Defendant will appear later in Court to answer the charge, won’t commit new criminal conduct while out on bail, or will not reasonably ensure the integrity of the judicial process (think witness tampering) or will not ensure the safety of the community.

The factors that are to be considered in a release decision include:

B. The nature of the evidence against the defendant; and [PL 1987, c. 758, §20 (NEW).]
C. The history and characteristics of the defendant, including, but not limited to:

1. The defendant’s character and physical and mental condition;
2. The defendant’s family ties in the State;
3. The defendant’s employment history in the State;
4. The defendant’s financial resources, including the ability of the defendant to afford a financial condition imposed by the judicial officer;
5. The defendant’s length of residence in the community and the defendant’s community ties;
6.  The defendant’s past conduct;
7. The defendant’s criminal history, if any;
8. The defendant’s record concerning appearances at court proceedings;
9. Whether, at the time of the current offense or arrest, the defendant was on probation, parole or other release pending trial, sentencing, appeal or completion of a sentence for an offense in this jurisdiction or another;
10. (9-A) Any evidence that the defendant poses a danger to the safety of others in the community, including the results of a validated, evidence-based domestic violence risk assessment recommended by the Maine Commission on Domestic and Sexual Abuse, established in Title 5, section 12004‑I, subsection 74‑C, and approved by the Department of Public Safety;
11. Any evidence that the defendant has obstructed or attempted to obstruct justice by threatening, injuring or intimidating a victim or a prospective witness, juror, attorney for the State, judge, justice or other officer of the court;
12. Whether the defendant has previously violated conditions of release, probation or other court orders, including, but not limited to, violating protection from abuse orders pursuant to former Title 19, section 769 or Title 19‑A, section 4011;
13. Whether the defendant is the person primarily responsible for the care of another person;
14. Whether the defendant has a specific health care need, including a mental health care need, that is being met or would be better met outside of custody; and
15. Whether being placed or remaining in custody would prevent the defendant from maintaining employment.

Obviously, this is a fairly lengthy list of things that can be considered. Where the disconnect frequently occurs is when the Court sets cash bail on cases where it shouldn’t be required and where the Court imposes special conditions that shouldn’t be imposed.