In 2014, 80 percent of the jail inmates in Androscoggin and Oxford counties were waiting for trial or other court business. They hadn’t been convicted of crimes.
That means those prisoners were unable to afford bail or were held without bail.
In Androscoggin and two other Maine counties, jail populations exceeded that respective facility’s capacity, requiring the “boarding out” of inmates to less crowded jails “at great expense to the taxpayers,” according to a report released Friday by the Intergovernmental Pretrial Justice Reform Task Force, headed up by Kennebec County Superior Court Justice Robert Mullen.
“It also creates complex financial, personnel, programming and personal problems for the sheriffs, the court system, defense counsel, service providers and the individual defendants and their families,” according to the report.
The group outlined the problem and offered nearly two dozen recommendations.
While recognizing that there’s no single reason for the burgeoning pretrial population at Maine’s jails, the report includes suggested changes to state law and judicial protocols aimed at “reducing the human and financial costs of pretrial incarceration and restrictions. In doing so, the Task Force believes these proposals will comply with (Maine’s) constitutional requirements, while not compromising individual or community safety or the integrity of the criminal justice system.”
The task force noted in its report that there is no difference in court appearance rates between defendants who are released on unsecured bail and those released on secured bail, just as there is no difference in rates off subsequent crimes committed while out on bail between those two groups of defendants.
There’s also the cost of housing an inmate at a county jail to consider, which the report pegs at an average of more than $100 per day.
Lewiston defense attorney James Howaniec, whose 30-year practice has been devoted largely to serving the indigent population, said Saturday he applauded the efforts of the task force.
“I’m elated by these recommendations,” he said after skimming the report’s pages.
“A lot of these proposals seem to be spot-on in addressing some of the real problems that we’re having in the court system,” he said.
“A lot of us have been complaining about the pretrial process, which is the part of the criminal justice system that is really under a lot of stress. We’ve felt for some time now that there needs to be a major overhaul of the bail code — we feel it’s discriminatory against the poor and indigent people without means.”
Among its many recommendations, the task force suggested:
* Maine’s Judicial Branch should raise the minimum dollar threshold for issuing bench warrants for a defendant’s failure to appear in court for a hearing on an unpaid fine from $25 to $100. Currently, the Judicial Branch internal policy requires that a warrant be issued for an unpaid fine of $25 or more. Warrants can issue from the bench if a fine of at least $25 is more than 30 days late and the defendant has been sent a demand letter that requires payment or an appearance before a judge to explain why the fine hasn’t been paid.
* The criminal justice system should implement and expand public service work programs to pay off fines for the lowest-class felonies or misdemeanor crimes. Those programs should only apply to those defendants “who have demonstrated the most difficulty with paying a fine.” The dollar amount credited for the public service should be set at the state minimum wage rate.
* The Judicial Branch should formulate a detailed fine collection procedure throughout the state that is standard and uniformly applied. The methods for collections, the frequency of and the schedules for fine hearings and the sanctions/payment plans imposed for failure to pay a fine vary greatly from courthouse to courthouse. The task force suggests that the Judicial Branch establish uniform systems, protocols and policies for the collection of fines throughout the state.
* There should be established a statewide fund from which bail commissioner fees are paid. Bail commissioners are not state employees and aren’t paid by the state for their work. Instead, the person being bailed out of jail pays the bail commissioner’s fee of up to $60 per arrest. A sheriff is allowed to create a fund to pay all or a portion of the bail commissioner fees of those arrested who are unable to pay, but only Kennebec County has an active bail commissioner fee fund.
*Regular state funding should be provided each year so that mandatory in-person bail commissioner training can occur.
* The form used by bail commissioners should be changed to allow for more specific conditions of releasing someone on bail. The current form used by bail commissioners combines individual conditions that may not be applicable or appropriate for someone who is released due to space restrictions on the forms. That can lead to the rearrest of someone for violating a bail condition that hadn’t been necessary to impose.
*Law enforcement officers need more training on the charge of violation of conditions of release (VCR) law and the role of officer discretion in deciding whether to arrest or summons for a VCR violation. Under state law, a law enforcement officer has the discretion to either summons or arrest for most VCR violations. Individual departments may have more specific policies. The decision to write a summons or arrest someone varies widely from police agency to police agency. That distinction means the difference between a jail stay or not.
*Adequate state funding should be provided to ensure consistently available statewide pretrial supervision in the community. A court may currently order a defendant to submit to the supervision of an outside, independent community agency — such as Maine Pretrial Services — and to abide by the conditions of supervision imposed, in order to be released on bail. Usually, these bail supervision contracts allow an individual to be released without the necessity of posting cash or surety bail.
* Pretrial bail can be set for a defendant in order to reasonably ensure the appearance of the defendant as required, to otherwise reasonably ensure the integrity of the judicial process and, when applicable, to reasonably ensure the safety of others in the community. It is also the purpose and intent of the code that the judicial officer consider the least restrictive release alternative that will reasonably ensure the attendance of the defendant, ensure the integrity of the process and ensure that the defendant will, while out on bail, refrain from committing new crimes. State funding should be provided for, and standardized training materials developed and delivered to all of those involved in that judicial process.
* There should be established and implemented a one-day statewide educational forum on community-based diversion programs. In the past 10 or more years, numerous community-based restorative justice and diversion programs have developed across the nation and in Maine. Studies have shown that such programs reduce crime, protect public safety, spend resources wisely, increase community support for rehabilitation of individuals caught up in the criminal justice system and lead to greater satisfaction for crime victims. However, those professionals employed in the criminal justice system know little about these programs.
* State funding should be provided to allow for the independent study of and validation of the pretrial risk assessment tool currently being used by Maine Pretrial Services. If found valid, this Maine-based pretrial risk-assessment tool should be adopted for statewide use. Twenty-nine multiple national and state studies have shown that use of an evidence-based, validated pretrial risk assessment is a more reliable predictor of an individual’s risk while out on bail than the traditional factors used by courts in setting bail. Risk of flight, risk of committing new crimes and appearance rates, can all be accurately predicated through the use of validated risk assessment tools. The use of such assessment results permits courts to be better informed while making bail decisions.
* The chief justice of the Maine Supreme Judicial Court should appoint a select committee to study, in depth, the bail systems of other jurisdictions that have completely, or almost completely, eliminated cash bail and instead instituted a system that utilizes risk assessment and pretrial supervision.
“There are a growing number of jurisdictions (Washington D.C., Kentucky, Indiana and New York) that have dramatically changed their bail system and eliminated or all but eliminated cash bail. Pretrial jail populations in these states have dropped dramatically without a corresponding increase in crime,” according to the report.
cwilliams@sunjournal.com
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