Second in the series, “Maine’s bail system: a 19th century holdover,” by the Maine Center for Public Interest Reporting. Next: Is due process threatened?

In December, 2010, police in Cumberland County tried to stop a speeder. He led them on a chase and ended up crashing on an Interstate 95 exit ramp.

The local bail commissioner was told the charges were driving at a criminal speed and operating with a suspended license. He set the bail at $300.

When the man appeared in court two days later, the judge revised bail to $25,000.

The difference, according to bail commissioner Alan Robitaille, was that the judge knew a lot more about the defendant that Robitaille did.

When Robitaille set bail, he was unaware of two charges – eluding an officer and reckless conduct with a dangerous weapon, the car. He said he also had not been told of the man’s extensive criminal history, including five prior violations for operating after suspension, burglary and cultivating marijuana.  

When the defendant appeared in court, the judge set bail 83 times higher than the less-informed bail commissioner.

“That would tell me that the court had a heck of a lot more information at its disposal than I did,” Robitaille said.

The case demonstrates one of the problems with Maine’s justice system, which depends in most cases on independent contractors to set bail. Bail commissioners rely on the arresting officer or a jail employee to give them information – usually over the phone – that they use for deciding whether to release the person without bail or to set an amount for bail.

A 2006 study of the system commissioned by a state-appointed corrections panel noted: “A majority of law enforcement agencies and jails reported they are limited to locally specific records and often times reporting the known criminal history for that county or the arrest/booking history for that jail only.”

Without a full and accurate picture of the defendant, experts say a bail commissioner could either set bail too low, which could put a dangerous person back on the street, or the bail could be set too high and unfairly deprive a person only accused of a crime of their liberty, even if only for a day or two, before a judge can review the bail.

Mark Rubin, research associate in justice policy at the University of Southern Maine Muskie School of Public Service, said inconsistencies in Maine’s system of setting on-the-spot by bail commissioners can result “in keeping someone in jail unfairly” or releasing a defendant too easily when that person can be a “threat to community safety.”

Robert Mullen, deputy chief judge of the district courts, oversees the bail commissioners. He said he has checked with state record keepers and been told commissioners do not have to wait to see relevant records.

“All the jails can run a defendant’s records, not just state or county, but nationally,” he said. “And most police departments can run the same check (in their cruisers) and that’s pretty much instantaneous unless the system is down.”

He said if commissioners are having trouble getting records “it’s for some other reason,” such as the police officer dropping off a defendant and then going right back on his beat. But, in such a case, he said, the jail can provide the records to the commissioner.

But others have said getting the full information at the right time is, at least sometimes, a problem.

Bob Whitman, a bail commissioner in Washington County, said that commissioners can’t get background information from another county. In the past, Whitman said he has had to ask a defendant if he or she has been in jail before.

Others in the criminal justice system recognize the imperfect conditions under which the bail commissioners operate.

Cumberland County Assistant District Attorney Matthew Tice described the decisions bail commissioners make as “knee-jerk.”

And District Court Judge Joseph Field, of West Bath, described their setting practices as “a quick and dirty at 2 a.m.”  

Field added, “You don’t have many facts, you got to make a decision, it’s 2 a.m., and all you want to do is curl up and go back to bed. I’m not going to criticize somebody for a judgment they made in that (situation) unless it’s totally off the charts.”

Cumberland County bail commissioner Barbara Guimond said that she frequently has to ask police officers for more information before she will set bail.

“People are in a big, fat hurry, especially if they’ve got a lot of people in there,” she said of officers at the jail.

Mark Westrum, the Lincoln-Sagadahoc County jail administrator, said that since Maine’s criminal records aren’t fully automated, it can take hours or days to acquire records from other counties.

Judge Mullen said he tells new bail commissioners that they’re not going to have as much information as judges or district attorneys do. He instructs commissioners in a training video that if they don’t have as much information as they would like, “it’s a no-brainer – you just decide, I’m not going to set bail right now.”

Doug Birgfeld, chief technology officer for the state courts, said getting all the right information in a timely fashion “has certainly been a problem,” but that much of the problem is nearly solved.

Jail employees, he said, already have access for bail commissioner to “the metro switch,” which is “anything currently active for an individual.”

But another key record, from the State Bureau of Investigation, which has more compete criminal histories, has not been easily available to the commissioners, according to 2006 study and a 2009 followup report.

“But that’s been fixed,” although only very recently, Birgfeld said, except for some older records “that fell into a black hole,” which he and others are working on restoring.

“The chance that a single individual will have a complete criminal record when a bail commissioner is setting bail?,” Birgfeld said. “I don’t know, in the past it could be as little as 50 percent. Now it’s gone up quite a lot and soon it will be quite a bit closer to 90 percent.

“There will always be some gaps,” he said. “We’ve gone now from 50 to 85 percent or 90.”

Everett Fowle, district attorney for Kennebec and Somerset counties, said the bail commissioners “don’t have all of the information, but they have more than they did. … It will be much better in 10 years, but we’ve made a lot of progress in the last 10 years.”

In Massachusetts, bail commissioners are also still part of the judicial system, but they only take cases in the evening when judges are not available.

According to Michael McEneaney, who oversees Bay State bail commissioners, everyone in the state’s judicial system, including the commissioners, have immediate access to full criminal histories.

“If you don’t have the reliable information,” he said, setting the right bail is “a crap shoot.”

Westrum, the former sheriff who now runs the Two Bridges Regional Jail in Wiscasset, said one of the problems he still sees is cross-county data sharing.

“If one of my staff call the next county over and no one there that night knows how to run the computer, then we don’t get the information,” he said. “It’s crazy.”

Eugene Shanor, an Oxford County bail commissioner said, “It’s a curiosity to me that at the trainings, they have said (bail commissioners) are supposed to have this info, and we don’t. … If they didn’t go though this jail in this county, then it seems to be pretty much hearsay.”

The question whether bail commissioners have been getting enough information was serious enough regarding one particular crime to get the rules changed.

While bail commissioners are told in their one-day training to get as much information as they can before they set bail, there is only one type of crime where they are legally obligated to get the full story: domestic violence.

Evidence that some men charged with domestic violence were released with little or no bail and then returned to further abuse or terrorize their wives or girlfriends led to that rare change in the bail system.

In 2002, the Legislature passed a bill specifying that the bail commissioner must make “a good faith effort to obtain from the arresting officer, the district attorney, a jail employee or other law enforcement officer:

(1) A brief history of the alleged abuser.

(2) The relationship of the parties.

(3) The name, address, phone number and date of birth of the victim.

(4) And existing conditions of protection from abuse orders, conditions of bail and conditions of probation …”

That is not required for any other crime.

John Pelletier conducted bail commissioner training and reviewed applications for openings as part of his job in the state judicial system from April 2007 to January 2010.

“Information flow has always been an issue as far as I know; it was an issue before I came on,” he said.

Bail commissioners are told to make a good effort to get that sort of data on people accused of other crimes, but if they don’t, they can still set a bail or release the defendant without bail.

For example, Pelletier said, “They’re instructed to call the arresting officer, and it’s difficult. They officer makes an arrest and they’ve got 20 minutes left on their shift. By the time they get to the jail, they’ve already put in an hour of overtime. They go home, they don’t want to be bothered.”

In that case, the commissioner could set bail and not be violation of any law.

Despite anecdotal evidence of problems and the shortcomings of the system, Pelletier said he has “generally found the bail commissioners to be conscientious, conservative, but thoughtful.”

Elizabeth Simoney of Pre-Trial Services, a nonprofit, said compared to the recent past of the bail system, “things are better now. Judge Mullen is very willing to get involved when there are problems. … Things were very difficult for a number of years, but we’re working in the right direction now.”

But, Simoney added, “some bail commissioners may not have all the information they need.”

The Maine Center for Public Interest Reporting is a non-partisan, non-profit journalism organization based in Hallowell. Naomi Schalit and John Christie are senior reporters; Emily Guerin, now a staff writer for The Forecaster, and Mary Helen Miller were interns with the center after graduating from Bowdoin College. The center can be reached at mainecenter@gmail.com or pinetreewatchdog.com.

This story was edited on April 8, 2011, to correct the spelling of Cumberland County bail commissioner Barbara Guimond’s name.

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Study: Setting bail a ‘monumental task’

From the 2006 study, “Pretrial case processing in Maine,” submitted to Maine’s Correction Alternatives Advisory Committee:

“The quantity and quality of information provided verbally over the phone to Bail Commissioners for bail consideration related to criminal history and criminal justice matters varies significantly between law enforcement agencies and jails. … The bail decision, to release or detain a defendant pending trial and the setting of conditions of release when appropriate, is a monumental task. This task carries significant consequences not only for the pretrial defendant but also for the safety of the community, the integrity of the judicial process, and the utilization of our often overtaxed criminal justice resources.”

The author of the study, Marie VanNostrand, said in an interview that compared to bail-setting officials in other states, “on average, the bail commissioners in Maine receive significantly less information on a defendant when they’re making their decision about bail.”

— Maine Center for Public Interest Reporting