Maine bail system eyed for updating Consultant has early recommendations

AUGUSTA – Maine’s system of setting bail for people suspected of crimes is fraught with problems, allowing for misuse and abuse that can lead to higher costs and risks to the public, a consultant told a statewide committee looking at making changes to the corrections system.

“When it comes to bail, I think Maine really needs to figure out what the intent and purpose is,” said Marie VanNostrand, a consultant with Florida-based Luminosity Inc. The consulting company was hired by the state’s Corrections Alternatives Advisory Committee to help address ways of improving pretrial services and reduce costs and overcrowding in jails and prisons.

A little more than halfway through her 26-week study of the state, VanNostrand presented some preliminary findings to the committee established about a year ago by the Legislature.

VanNostrand said she expects to develop some county-specific recommendations as well as some broader statewide recommendations to present the committee by late September. The committee, representing law enforcement, the judicial branch, prosecutors, municipalities, the corrections system and service agencies, intends to complete its final report by November, committee co-chairman Martin Magnusson, commissioner of the Maine Department of Corrections, said Thursday.

Although Maine has developed some cutting-edge services for those awaiting trial, VanNostrand said the system of bail commissioners is antiquated. She said that often information necessary for making appropriate bail decisions by the commissioners or judges is not available.

Bail commissioners vary around the state, but she said in some cases the commissioner makes a decision without making vital checks in other counties and agencies on someone in custody.

“He could have been convicted of murder in another county in Maine and they don’t know,” she said. In some cases, low-risk people are unable to make bail while higher-risk people are released on a lower bail, she noted.

The current system contributes to overcrowding in corrections institutions. The average daily population in Maine prisons has grown 70 percent in the last 20 years and by 181 percent in county jails in that same time period.

For such an important gatekeeper, bail commissioners are required only to live in Maine, to be appointed by a judge and to take an eight-hour training course, minimal requirements.

Lt. Col. Michael Vitiello, jail superintendent for York County, attended Thursday’s meeting in the Legislature’s Appropriation Committee room. He is a vocal critic of the bail commissioners system. He also urged changes be made.

“The nicest thing that I could say about it is it’s broken,” he said.

VanNostrand has been a corrections consultant in Ohio, Illinois, Florida and Virginia and has knowledge of corrections systems in other states, so she spoke with some authority when she described one bail issue as being a “Maine thing.”

Maine law enforcement and bail commissioners widely use a bail condition that allows for random searches and drug or alcohol testing, even when alcohol is not a factor in a crime, she said. Such a provision could lead to authorities repeatedly entering a suspect’s home to look for anything incriminating, violating the intent of a “least restrictive” clause in the law governing bail.

“Because you are accused of almost any crime in Maine, you get a random search and testing,” she said. “That’s a huge right to be giving up as a condition of bail that doesn’t relate to the offense or the history of the person.”

Evert Fowle, district attorney for Kennebec and Somerset counties and a committee member, agreed that such use of the provision is inappropriate, but he said that the search and testing is a useful tool to monitor people when used properly.

Maine District Court Judge Robert Mullen also acknowledged the provision is widely used, but told the committee that he urges anyone with such complaints of abuse to back it up with evidence and bring it forward.

“I have yet to have someone come back with evidence that it’s been used inappropriately,” Mullen said.

VanNostrand credited Maine with cutting-edge programs such as providing an “attorney of the day” to serve as counsel during an initial appearance for anyone who can’t afford representation. Having an attorney present not only helps the client, it also can speed up the process in resolving the matter, she said.

During a break in the meeting, the consultant said Maine is implementing video arraignments that are expected to reduce costs and improve safety.

VanNostrand’s recommendations are part of a larger report under way. Magnusson said the committee will consider whether changes are needed to split sentencing – when inmates receive a combination of jail time and probation. The committee also may look at the effectiveness of halfway houses and supervision programs. Regionalization of corrections services is “on the table,” he said.

Even though soaring corrections costs were the driving force behind establishing the committee, Fowle said the overarching concern now should be improving the overall system.

“The goal should be to make a better system,” he said.