Editorial: Time to curb cash bail

Being poor is expensive. Driving an old clunker means frequent trips to the mechanic. Delayed medical care can prove both pricey and life-threatening. And a minor run-in with the criminal justice system can land people in jail because they cannot afford to pay for bail.

A 2015 report from an intergovernmental task force found a steady increase in the number of pretrial individuals being held in Maine’s county jails. In eight of the 15 county jails, the pretrial population was more than 70 percent of the total jail population. In other words, most county inmates are locked up without having been convicted of a crime.

There are a variety of reasons for a person to be booked pretrial. Among them are warrants for failure to appear at a court hearing concerning an overdue fine, failure to appear to pay a fine, violating probation, allegations of new criminal conduct, failure to appear for a court hearing and motions to revoke bail.

By the time some defendants have their day in court, they have already served more time than they could expect to get if found guilty. Where is the justice in that? Money-based bail and fines too frequently means incarcerating low-risk, low-income defendants while freeing those with deeper pockets — even if they are charged with more serious crimes.

Meanwhile, county jails are chronically understaffed, facing rising costs and tasked with serving a population with complex needs, including mental health issues and substance-use disorder. The study reported the average cost to house a person at a county jail is over $100 per day.

Change is long overdue.

In 2015, former state Sen. Eric Brakey (R-Auburn) proposed replacing bail with a risk assessment process to determine whether a defendant awaiting trial needed to be jailed.

More recently, LD 1703, sponsored by Rep. Rachel Talbot Ross (D-Portland), would eliminate cash bail for most people charged with Class E misdemeanor crimes, the lowest level of criminal offenses. Class E crimes include disorderly conduct, drinking in public, criminal trespass and failure to disperse. Cash bail could still be set for Class E sexual assault or domestic violence charges. The legislation would also make changes to the list of bail conditions for all defendants in hopes of curbing the number of people booked for alleged violations.

As the Portland Press Herald points out, Maine has one of the lowest violent-crime rates in the country, and a low rate of incarceration in our state prisons, which house people convicted of serious crimes.

Yet our county jail population is too often bursting at the seams, with jails paying to board overflow inmates at other facilities.

Bail is supposed to be insurance, not punishment. There are other means to ensure defendants show up for their day in court. Investing in pretrial supervision, risk assessment tools and restorative justice and diversion programs would be a better use of public dollars than jailing those who pose no danger to the public and who are presumed innocent until proven guilty.

LD 1703 is an opportunity for the Legislature to revive discussions of the efficacy of cash bail, weighing its intended purpose against what it actually achieves — a system that costs everyone dearly.

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