Maine’s bail system: A 19th century holdover

Part one in a series

If you are arrested in Maine, everyone you deal with — with one exception — will be a professional.

The police officer who arrested you is certified and has at least 100 hours of training.

The prosecuting attorney, your own lawyer and the judge all went to law school and passed a rigorous bar exam.

But the amateur link in the criminal justice chain is the person who will make the on-the-spot decision about both your immediate liberty and the community’s safety.

Will you be released on little or no bail and be back on the street in a matter of hours?

Or will bail be set high, and if you can’t come up with the cash, will you be jailed one or two nights until a judge can review your case?

Those decisions are made by a person called a bail commissioner.

Just about anyone with a clean criminal record can be a bail commissioner in Maine. No education is required, no test, no certification.

A judge reviews your application, and if there is need for another bail commissioner in your county, you could be on the job after one day’s training.

The bail commissioner is an obscure but essential part of Maine’s criminal justice system that dates back to 1883, and critics say it is in need of serious updating.

More than five years ago, problems with the bail system were brought to light by a study commissioned by the state-appointed Corrections Alternatives Advisory Committee.

An examination by the Maine Center for Public Interest Reporting has found that five years after the study, some improvements have been made, but the system, which one expert calls “an infrastructure whose time has passed,” still has some of the same shortcomings.

These include:

* Insufficient training;

* Commissioners sometimes lack full criminal histories when setting bail;

* Inconsistency in bail amounts and conditions;

* Potential conflicts of interest by bail commissioners being paid by the people whose bail they set.

Vestige of 19th century

The position of bail commissioner was created by the Legislature in 1883, when Chester A. Arthur was president, the Brooklyn Bridge was completed and Maine’s population was half of what it is today.

Since then, legislatures have passed laws requiring the professionalization of lawyers, judges and police officers — but not of the people who set the initial bail for just about every crime but murder.

“It’s a mature system,” Maine Chief Justice Leigh A. Saufley said. “There are parts of the system that could use some work.”

Mark Westrum, former Sagadahoc County sheriff and currently administrator of Two Bridges Regional Jail in Wiscasset, calls the bail system “the No. 1 public safety issue” in the state.

“There are people who get released who shouldn’t get released,” he said, recalling cases in which defendants spent a weekend in jail unnecessarily.

He said there are cases such as a clammer caught without a license who couldn’t come up with bail.

“The bail commissioner decides (the clammer) has to go jail for the weekend until the judge can see him,” Westrum said. “He’s in jail for a stupid offense, and it costs the county $161 a day to keep him there. It’s crazy.”

Robert Mullen, deputy chief judge of the state’s district courts, oversees bail commissioner training in addition to his courtroom duties. “For the most part, the commissioners are doing a competent job,” he said, adding, “In an ideal world, the bail commissioners would be lawyers or have law-school-type training.”

Zachary Heiden, legal director of the Maine Civil Liberties Union, said, “It seems like there’s little or no training and little or no oversight or standards. All that can add up to arbitrariness, and that’s antithetical to due process — and the guarantee of due process is the promise the government will treat everyone the same. If two people with the same offense are being treated differently … there’s something troubling there.”

How bail works

After being arrested and taken to jail, the only way defendants can be released is if there is assurance they will show up for their court date. That assurance often comes in the form of bail — cash deposited or property promised to the state that will be returned when the defendant appears in court. For minor offenses, a personal promise to appear in court may take the place of bail.

According to Maine’s bail code, bail should be set in the least restrictive way that will ensure a defendant’s appearance in court, protect community safety and prevent the defendant from bullying victims, witnesses, jurors or other officers of the court.

Because a defendant is presumed innocent until proven guilty, the 8th Amendment of the U.S. Constitution prohibits setting bail unreasonably high and unlawfully keeping a defendant in jail.

After a police officer makes an arrest and takes a defendant to jail, the officer’s next step will usually be to call a bail commissioner from that county. He will explain over the phone why he made the arrest and provide any background information or criminal history he might have.

After considering the information, the bail commissioner will decide whether bail is appropriate and, if so, what the amount and conditions should be.

Later, the bail commissioner comes to the jail to fill out the paperwork for the defendant’s release. If a defendant can’t pay the bail, he stays in jail for up to three days until he can request a judge to have his bail changed.

The state has 115 bail commissioners. Depending on the county, commissioners can receive anywhere between one phone call a month in rural areas to multiple calls per day in urban parts. Calls come at all hours of the day and night.

The bail commissioners are not government employees — they are independent contractors. They are paid $60 each time they set bail — by the defendants, not the state or county.

There is no government record of how much they make per week or per year, although it can be estimated based on how many bails they set. Five per week, for example, would yield an annual income of $15,600, which those in the field say is probably close to what a commissioner makes in a busy county, but they could make much less in a rural county.

Bail commissioners — most are men — come from all types of backgrounds and include former police officers, an insurance salesman, a former newspaper reporter and a real estate agent.

The study

Concerns about the growing number of defendants in Maine jails led the Legislature to create the Corrections Alternative Advisory Committee, which commissioned a study of how defendants were processed before they went to trial.

The study, by Luminosity Inc. based in Florida, considered every aspect of the process, including the bail commissioner system. Its September 2006 report concluded:

“The requirements of bail commissioners are insufficient to ensure the most effective application of the Maine Bail Code as it relates to setting pre-conviction bail.”

Only two of the 10 bail recommendations in the study had been implemented when the Corrections Committee got an update in 2009 from Mark Rubin, research associate in justice policy at the Muskie School of Public Service.

Community safety was added to the list of factors that bail commissioners consider when setting bail, and the conditions of release form was modified to prevent unconstitutional search-and-seizure practices.

However, in a 2009 presentation, Rubin assessed the status of the other recommendations. The finding included:

* Bail commissioners are not always receiving necessary information about a defendant’s criminal history when setting bail.

* County jails have not implemented automated fingerprint identification systems that would yield more information about a defendant’s criminal history.

* Improvements in selection, training and oversight of bail commissioners are ongoing.

* No minimum standards have been developed regarding the information provided to bail commissioners when setting bail, except for domestic violence crimes.

* The system for compensating bail commissioners has not been reformed, though the bail commissioner’s fee was raised from $40 to $60.

* Pretrial services have not been expanded to conduct investigations prior to a defendant’s initial court appearance.

In a recent interview, Rubin said, overall, “The system is in need of some consistency. Every bail commissioner is using different methods in assigning bail across the counties and jurisdictions.”

Mullen, who oversees bail commissioner training, said, “To me, the system works. I don’t want to say surprisingly well; it does work well to me. If we had attorneys — or some states have magistrates … sounds like they might be lawyers — we don’t have the funding for that type of program.”

Emily Guerin and Mary Helen Miller were interns with the center after graduating from Bowdoin College. Naomi Schalit and John Christie are senior reporters.

Sidebar: Maine’s bail commissioners set pre-conviction bail for almost all defendants.

The exceptions are:

* A judge will set bail in cases in which a defendant is charged with murder;

* A judge will set bail in cases in which the attorney for the state requests a Harnish bail proceeding, which is held when the defendant is accused of crimes other than murder, such as rape, that previously warranted capital punishment in the state;

* Bail is not set in cases in which a defendant is “confined in jail or held under arrest by virtue of any order issued by a court in which bail has not been authorized.”

Source: Maine statutes

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