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May 21—People who are charged with a minor crime in Maine would no longer have to post cash bail to be released from jail under a bill aired in a public hearing by the Legislature's Judiciary Committee on Friday.
The legislation, sponsored by Rep. Rachel Talbot Ross, D-Portland, is a streamlined version of previous efforts that would have put an end to cash bail. Those who support the change say cash bail creates an unfair and unequal criminal justice system — allowing those with money to go free as they await trial, while poorer people often languish in jail for weeks or even months even though they haven't been convicted of a crime.
"We should not be holding people who are neither dangerous or a flight risk in jail simply because they cannot afford to pay," Talbot Ross said. "Money bail is one of the most broken parts of our legal system. It lets the size of person's wallet determine whether a legally innocent person, accused of a crime, can return home or remain locked up in jail while awaiting their day in court."
The bill, L.D. 1703, only applies to those charged with Class E misdemeanor crimes, including such offenses as criminal trespass, disorderly conduct, failure to disperse and public drinking. Cash bail would still be allowed for Class E sexual assault or domestic violence crimes under the bill. Data on how many people are currently being held in Maine jails simply because they couldn't post cash bail was not available on Friday, although several lawmakers on the committee asked those testifying on the measure for that information.
Numerous supporters testified in favor of the bill, and the only direct opposition came from the Maine Department of Public Safety and the Maine State Police.
State Police Maj. William Ross said the measure would lead to repeated calls for police service, creating additional risks for officers and public safety.
"When a law enforcement officer is unable to take an offender into custody and no bail exists, essential to removing the problem from the area, these incidents, which usually start as a nuisance complaint, can quickly escalate leading to more serious incidents and crimes," Ross said.
The debate on bail in Maine comes against the backdrop of an ongoing national conversation around bail reform. So far, only a handful of states have passed laws to eliminate or limit cash bail, including New Jersey, Alaska, Illinois and Vermont. In 2018, California also eliminated cash bail but the system has yet to be implemented. In 2019, New York state eliminated cash for most non-violent offenses, only to roll it back in 2020 after police in New York City noted an increase in crime that they attributed to the elimination of cash bail.
Washington, D.C., eliminated cash bail in 1992 and its experience is often used to rebut arguments that eliminating bail will result in defendants fleeing or not appearing in court when the time comes. According to a report by the Center for American Progress, a left-leaning public policy institute, 94 percent of defendants in D.C. are released without cash bail prior to trial and 91 percent appear for trial.
Maine flirted with the idea of eliminating cash bail in 2015, when former state Sen. Eric Brakey, R-Auburn, offered legislation that would have replaced bail with a risk assessment process to determine whether a defendant needed to be jailed while awaiting trial.
Andrea Mancuso of the Maine Coalition to End Domestic Violence supported the overall intent to not jail people who do not need to be in jail and are only being held because of economic disadvantage.
But she said the coalition opposes provisions that could require that any bail conditions only be set by clear and convincing evidence. That could compel the victims of domestic violence to testify for conditions of release often spelled out in bail agreements, such as a prohibition against possessing a gun or having contact with the victim. She said under current law it is rare that a victim must appear at an initial hearing on bail conditions.
Cumberland County District Attorney Jonathan Sahrbeck offered neutral testimony on the bill, saying he recognized many of the issues it is seeking to address.
"To me, a wealth-based bail system is not the perfect system, it's actually very imperfect," Sarhbeck said. He noted that the most dangerous suspects may very well be the ones who have the means "that are going to get them out of jail, and I've seen it happen."
Sarhbeck said for Maine to move to a no-cash bail system, it would need to significantly enhance its pretrial services operation. He said about 200 individuals currently being held in the Cumberland County Jail are awaiting trial, and about two-thirds of them had two or more open cases against them.
"And probably about three quarters of that two-thirds are on no-bail holds, meaning they have either been held on a probation violation and a judge has said there is not going to be bail, or there has been a motion to revoke their bail that was filed by my office with the idea that this person is a danger to the community," Sarhbeck said.
The bill will next be the subject of a work session before the committee, before it is sent to the full Legislature for consideration later in June.