Maine bill to eliminate cash bail for minor crimes moves forward

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Jun. 4—A bill that will prohibit holding suspects of minor crimes in jail simply because they can't afford to pay bail was approved by the Legislature's Judiciary Committee on 10-2 vote Friday.

The bill, sponsored by Rep. Rachel Talbot Ross, D-Portland, would still allow cash bail for those facing misdemeanor sexual assault charges or those accused of domestic violence crimes. It also allows bail to be revoked if a person misses a court appearance or if while on bail a person is charged with additional crimes.

"This is a significant bill, a very important bill," said Rep. Thom Harnett, D-Gardiner, the House chair of the committee. "I believe the current bail system criminalizes poverty and leads to incarceration because of one's financial status and should never be a reason that one should be deprived of their liberty in this setting."

Talbot Ross, who serves as the Assistant House Majority Leader and is one of only three Black lawmakers in the 186-seat state Legislature, said Maine's bail system also disproportionately impacts people of color. She pointed to findings that people of color consistently face higher bail amounts than the amounts set for whites who are charged with the same crimes, and they additionally have less access to wealth.

"It is discriminatory, it is costly and it doesn't work," Talbot Ross said in testifying for the bill in May.

She also noted keeping people in jail because they can't afford to pay small amounts of bail costs the government more money than it would if they were they released on their own recognizance. She said multiple studies have also shown those who pay cash bail are not any more likely to appear in court than those who do not.

The bill, as approved by the committee, also prevents a bail commissioner or a judge from not issuing non-cash bail if a suspect cannot pay the mandated $60 fee to the bail commissioner, as is often the case now.

Two members of the committee were absent for Friday's vote.

The bill also requires a judge or bail commissioner in setting bail to consider what Talbot Ross called "the potential ripple effects of incarceration." Such considerations include whether the suspect is the primary caregiver for another person or children, whether being held in jail will cause job loss or whether incarceration will prevent a person from receiving needed health care treatments, including mental health and substance use disorder treatments.

The legislation 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.

The measure has received broad support from civil rights organizations as well as advocates for the poor and other marginalized communities including advocates for Maine's LGBTQ community.

"Given that LGBTQ people are more likely to be poor, cash bail is disproportionately burdensome to members of our community," Alysia Melnick, an attorney representing Equality Maine told the committee during a public hearing on the bill in May. "Collectively, the rate of poverty amongst lesbian, gay, bisexual, and transgender people (21.6 percent) exceeds the rate for cisgender and heterosexual individuals (15.7 percent). Transgender individuals experience poverty at an even higher rate — (29.4 percent)."

Maine spends about $87 million a year on its county jails and between 60 and 80 percent of the inmates in jail are there awaiting trial, according to a 2015 report from an intergovernmental task force set up in Maine to study pretrial reforms.

Data from the Council on State Governments in a 2018 report also shows three-quarters of the 36,000 arrests made in Maine that year were for misdemeanor charges.

"In the ACLU's work on pretrial reform, we have come across fishermen, housepainters, and restaurant servers who lost their jobs because they spent as few as one or two nights in jail, after a bail commissioner set money bail they simply couldn't afford," Megan Sway, policy director of the ACLU of Maine said.

She said mothers have lost custody of their children while the homeless have lost shelter beds and those struggling with substance use disorders have lost the place in rehabilitation programs.

"Every single one of those cases was a misdemeanor," Sway said. "These are not crimes for which people should be held in jail before trial at great personal and taxpayer cost."

Opponents to the bill included the Maine State Police, which testified against the measure, saying eliminating cash bail for minor crimes would inhibit law enforcement's ability to deescalate some situations and prevent more serious crimes from being committed after a detained suspect is released from custody.

The bill will now move to the full Legislature for additional consideration later this month.