The Problem With Bail Part II

In my previous post on bail I discussed the history of bail and the factors that Judges are supposed to consider. The problem with bail is that the conditions imposed are frequently not serving the underlying purpose of bail. As discussed, bail is supposed to make sure that a person on bail shows up to their Court date, doesn’t break the law, doesn’t interfere with Court and isn’t a danger to the community. Based upon those factors alone, I would argue that bail is almost never justified on any misdemeanor case. A misdemeanor case is by definition a less serious criminal proceeding. Imposing a bail condition that restricts the Defendant’s freedom or potentially keeps them in jail doesn’t serve any legitimate purpose. Realistically, a $500 bail is far more likely to unnecessarily keep someone in jail than it is to ensure that they appear in Court. Similarly, a curfew of 7 pm to 6 am is far more likely to see someone arrested for a trivial violation of bail than it is to ensure the safety of the community.

Over time, the imposition of bail in Maine has organically become a little but like selling used cars. A personal recognizance bail (no money or conditions) is reserved for all but the most vanilla of crimes and vanilla of Defendants. PR bail continues to become rarer in a time when it should be more frequent. Setting moderate but pointless amounts of bail has become the norm, as though to do otherwise would diminish the seriousness of the proceeding.

Bail amounts and conditions that keep people in jail and restrict their liberties divorced from any legitimate purpose written into the bail code are the chief problems with bail in Maine today. Until we are willing to limit the use of cash bail and overly restrictive conditions, we will continue to see individuals in jail when they shouldn’t be and individuals repeatedly charged with minor bail violations. It is often these minor repeat bail violations that clog our jails and contribute to the backlog of cases in our Courts.