Maine's new bail law may ease the crunch for struggling county jails

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Oct. 9—A new law that eliminates cash bail requirements for most minor charges is set to go on the books this month and could help ease some of the pressures on Maine's county jails, lawmakers said Friday.

The current crisis at the Cumberland County Jail caused by a staffing shortages and a COVID-19 outbreak likely would have been less severe had the law already been in effect, said Rep. Thomas Harnett, D-Gardiner, the House chairman of the Legislature's Judiciary Committee and a co-sponsor of the legislation.

"I would have to assume, had this law been in effect, some of the people now sitting in Cumberland County Jail today would not be there," Harnett said.

The new law eliminates the cash bail requirement for most Class E misdemeanor charges. It will go into effect Oct. 18.

Class E crimes in Maine include disorderly conduct, theft under $1,000 and operating a motor vehicle on a suspended license. The law does not remove bail requirements for suspects charged with a Class E crime related to domestic violence or sexual assault or misconduct. The law also does not allow a suspect charged with a Class E charge for being in violation of conditions of release to go free without bail a second time.

The change, which gained bipartisan support in the Maine Legislature, including a 10-2 endorsement from the Judiciary Committee, became law without Gov. Janet Mills' signature and over the objections of the Maine State Police, who argued it would lead to increased and repeated calls for service while diminishing public safety.

But Harnett and the bill's primary sponsor, Rep. Rachel Talbot Ross, D-Portland, disagreed and point to other states that have eliminated cash bail without seeing major spikes in the crime rate or increased cases of pretrial suspects not showing up in court.

Bail reform has become a focus of debate in state legislatures across the country, and a growing number of states have limited cash bail for certain categories of crime. Advocates say it essentially ends a practice that discriminates against poor people. Opponents argue it puts criminals back on the streets, especially when cash bail is eliminated for more serious crimes.

TOO POOR TO PAY BAIL

In a statement Friday, Talbot Ross said most people held in county jail have been charged with misdemeanors and have not been convicted, but are too poor to pay for bail. She said the pandemic spurred the Legislature to adopt the reforms.

"In the interest of public health and safety both inside and outside of Maine's jails, we got to work immediately this year to reduce the number of people incarcerated in these facilities," Talbot Ross said.

It remains unclear how many of the approximately 300 inmates now being held at the Cumberland County Jail would not be there had the new law already been in effect. Attempts to obtain that information were unsuccessful Friday.

Penobscot County Sheriff Troy Morton, the president of the Maine Sheriff's Association, did not return phone messages Friday seeking his perspective on the law change, and a message for Androscoggin County Sheriff Eric Samson also went unreturned.

Harnett said it would be an additional "tragedy" if any of the pretrial inmates who would have been released under the new law contract COVID-19 while at the Cumberland County Jail.

"The whole point behind the bill is to make sure that bail serves its purpose in protecting public safety and is not used as a way to criminalize poverty," Harnett said. "That a person cannot afford to pay bail should never be the primary reason to put somebody in jail."

Talbot Ross said the bail reform law, as well as other proposed changes in bail laws that did not become law, are consistent with the decision by law enforcement in Maine to take fewer people into custody and instead issue more summonses during the pandemic, in part because of the danger COVID-19 poses to people forced to live in congregate settings such as jails.

A different bill sponsored by Talbot Ross this year sought further reforms, including requiring police to issues summonses instead of taking suspects into custody for a variety of low-level crimes, eliminating so-called "warrantless arrests." The measure also would have made some violations of conditions of release Class E misdemeanor charges instead of Class C felony charges.

FURTHER REFORMS SOUGHT

In her testimony on the bill, Talbot Ross noted that Maine is one of only seven states that criminalizes pretrial violations of conditions of release other than failure to appear in court. "That means that we are one of seven states that takes acts that are otherwise largely not crimes and makes them a crime, simply because they are committed by a legally innocent person out on bail," Talbot Ross said.

Talbot Ross said a number of the violations of conditions of release defined in Maine law make people criminals for engaging in otherwise legal activities. For example, she said, a person could be arrested and in jail for simply having a beer in their refrigerator, even if their original underlying charge had nothing to do with alcohol misuse.

While that bill also cleared the Legislature, it was successfully vetoed by Mills. In her veto message, the Democrat agreed that some of the violations of conditions of release served little practical purposes but said the Legislature should contemplate removing them entirely from the law instead of making them unenforceable.

Mills also noted that some behaviors that were considered violations of conditions of release were often related to the underlying charge.

"It is all too common, for example, for domestic violence to be tied to alcohol abuse," Mills wrote. "A defendant who is charged with related offenses that were committed while intoxicated may be released on the condition that they not possess alcohol. A law enforcement officer who observes that person drinking heavily in escalating circumstances must be able to make an arrest in the interest of public safety."

In a statement Friday, Talbot Ross said that despite that legislation not clearing Mills' desk, she remains focused on the problem and intends to introduce additional legislation in the future.

"Our jails and prisons have been overcrowded for years, and during a pandemic that can have lethal consequences," Talbot Ross said. "Especially considering that many, many people incarcerated in Maine grew up in poverty and have had insufficient access to health care throughout their lives, they're at even greater risk of death and severe illness when exposed to COVID-19. "

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