Third in a series by the Maine Center for Public Interest Reporting on “Maine’s bail system: a 19th century holdover.” Next: How to improve the system.

Jon Gale, a Portland attorney, periodically serves as “lawyer of the day” in district court, representing defendants in arraignments.

The defendants have already had their bail set by one of the state’s bail commissioners, independent contractors whose position was created by the Legislature 128 years ago.

What Gale sees in those bail decisions demonstrates one of the problems in the state’s system for setting bail for most defendants – an inconsistency that concerns some legal experts.

“You see people with similar backgrounds and similar facts get different bails set, but you don’t know why,” Gale said. “There are times when a bail commissioner sets personal recognizance (a promise to appear in court) on an OUI, with a high blood alcohol content. Other times there will be a $500 cash (bail) on a comparably low blood alcohol content OUI.”

Judges, who set bail in major cases and can overrule a bail commissioner’s bail, also have to rely on their judgment for setting bail. But they are trained legal experts, law school graduates who have passed the rigorous bar exam.

On the other hand, there are no educational requirements to be a bail commissioner, no test and no certification. They are not even paid by the state, but get their compensation directly from the people arrested.

Critics say the limited training and expertise, the inconsistency in how bails are set and other factors, such as having the bail commissioners paid by the people whose bail they set, reveal a system in need of updating.

Marie VanNostrand is a Florida-based criminal justice consultant who conducted a 2006 pre-trial justice study for Maine. She said she doesn’t think the one day of training for bail commissioners is sufficient.

“There’s a lot of legal and constitutional education that any judicial official – a bail commissioner or a magistrate or judge – should have in order to be skilled in setting the appropriate bail,” she said. “One day would be very challenging to provide that degree of education and training on the material that really a judicial official should be armed with to make these types of decisions.”

‘Whatever is normal’

Most bail commissioners and judges agree that because every defendant has a unique set of circumstances, setting bail is subjective and a formula too restrictive. But they also widely acknowledge that bail setting practices vary by county and commissioner.

“I’m always amazed by the bail that gets set in different counties,” Cumberland County bail commissioner Barbara Gimaux said. “But I don’t think it matters, I honestly don’t. Whatever is normal in your house is OK for your family.”

What’s normal in Franklin County is $3,000 unsecured bail, which is a promise to pay $3,000 if you miss your court date. Recent arrest logs show this bail being set frequently for a wide variety of crimes.

For example, between Dec. 9 and 12, 2010, seven out of 12 bails were $3,000 unsecured for a range of crimes: domestic assault, criminal restraint, operating under the influence, obstructing reporting of a crime and driving after suspension.

When asked why this bail was assigned so frequently, Elena Barker, a bail commissioner from Franklin County, said, “$3,000 is something we use in our area.”

She added that the three bail commissioners from Franklin County have lived in the area for “a length of time” and all use this amount.

Several of the bail commissioners interviewed were given the details of a real arrest and asked how they would decide the bail. Most said they would want to know if the defendant had ties to the state or failures to appear in court. But they each had their own set of questions about the defendant and opinions about which factors were most important.

Richard Ross, a bail commissioner in Piscataquis County, said it would be important to know if the defendant cooperated when arrested. He also would want to know if the defendant has a job that jail time might interrupt, if he “comes from a nice family” or if he has children at home who depend on him.

Audrey Street, a bail commissioner in Penobscot County, said she would want to know if there were drugs or alcohol involved.

Bob Whitman, a bail commissioner in Washington County, said that it would be important to know where the defendant was from and if he had been arrested before.

“If it’s a local kid, first-time offense, never been in trouble,” Whitman would set an unsecured bail, but if the defendant is from out of town he would “go with a higher cash bail.”

Troy Obar, a bail commissioner in Aroostook County said, “I’m sure you’re finding almost every bail commissioner bases his decision on something different.”

The variation in bail-setting practices can be a problem, attorney Gale explained.

“A person who is poor and has the misfortune of someone setting bail at a higher level will remain in jail for the same type of offense” as somebody else who was released on a lower bail, he said.

According to Mark Rubin, research associate in justice policy at the Muskie School of Public Service at the University of Southern Maine, “people who are stuck in jail have families and jobs, and if they’re not a threat to society, then having them in jail has no benefit.”

Unnecessary jail time also means unnecessary government spending. For example, Mark Westrum said it costs an average of $161 per day to keep a defendant in the Lincoln County-Sagadahoc County jail, where he is administrator.

Bail ‘not a science’

Robert Mullen, the deputy chief district judge who oversees the state’s bail commissioners, said, “We don’t have graphs that say, ‘Second offense for an OUI, (defendant is from) Massachusetts, bang ’em. First-offense OUI, next-door neighbor, give ’em a ride home. … We don’t have those. It is truly an art, not a science.”

But bail commissioner Bob Whitman said he wished that there were more guidance.

“They don’t tell you how much to set cash bails for,” he said. “It would be nice if they could tell you that.”

Because there is little preparation for actually deciding how to set bail, Mullen encourages new commissioners to shadow experienced ones. But in some cases, this can lead to new commissioners adopting the idiosyncratic practices of veteran commissioners.

Peter Dufour, a Penobscot County bail commissioner with 29 years of experience, often lets new commissioners shadow him. He tells them to “look at the papers, and see what the judge is charging for fines.” That way, he reasons, if the defendant does not show up for court, at least the state can apply the uncollected bail to the fine.

In Oxford County, commissioner Gene Shanor also considers the potential fine while setting bail: “If I have a glimmer as to what the fine would be, I try to hit close to it.”

However, West Bath District Court Judge Joseph Field called that method of setting bail “inappropriate because the guy might be innocent.”

Judge Mullen echoed that sentiment.

“Hopefully they didn’t attribute that to training, or at least any training I was involved in,” he said.

“It doesn’t make sense to me to set bail over what the defendant might be found to pay if they are found guilty,” he said.

The bail manual, citing state law, lays out a set of “factors to be considered” in setting bail. Most of the factors cited by bail commissioners are in it, but others are not, such as the amount of the possible fine of if the defendant comes from a “nice family.”

But the law also allows much discretion:

“This list is not exhaustive,” it states. “What the statute wants you to do is to consider everything about the defendant that could reasonably bear on whether he/she will: appear for trial, refrain from committing new crimes, and otherwise respect the integrity of the judicial process, as well as considering how to reasonably ensure the safety of others in the community.”

Call for certification

Westrum, the jail administrator and a former sheriff, said, “There’s not a good enough standardized system for bail commissioners to follow. “

If he had his way, he said, bail commissioners would be certified by the Maine Criminal Justice Academy.

“Bail commissioners are such an integral part of the criminal justice system, they should have to hold the same certifications (law enforcement holds),” he said.

Kennebec County District Attorney Evert Fowle also thinks bail commissioners would benefit from more than just one day of initial training. “I think they should have continuing education to maintain their bail commissioner status,” he said.

Second to Mississippi

Judges Mullen and John David Kennedy of West Bath District Court both cited lack of funding as the reason that certain aspects of the system haven’t been changed.

“You need to understand the context in which we’re operating. Maine has the least well-funded judicial system of any state in the country, except perhaps, Mississippi,” Kennedy said.

“Because we don’t have any money, I don’t think we’ll need to worry about a new system any time soon,” said Mullen, in the bail commissioner training video.

But both judges also said that they think Maine’s bail-setting system works just fine.

“Given what we pay for the bail commissioner system, which is essentially nothing, I think it works pretty good,” Mullen said in the video.

“I think Maine’s bail system is superior to any other one I’ve ever seen,” Kennedy said.

However, Shenna Bellows, executive director of the Maine Civil Liberties Union, said the inconsistencies in the bail commissioner system suggests a degree of “arbitrariness” that raises “constitutional issues.”

“The lack of a systematic approach to bails clearly undermines due process rights for defendants,” she said.

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 at 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 and online at pinetreewatchdog.com.

Sidebar Elements

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Bail commissioners are paid by defendants whose freedom they control

“The current system for compensating Bail Commissioners is fraught with potential conflicts and difficulties.”

— 2006 study of Maine’s pretrial system

Five years later, those potential conflicts still exist.

The conflict begins with the way bail commissioners are paid. Not by the county or the state, but by the people who are arrested.

Bail commissioners decide if a person just arrested can be released for “free” on personal recognizance (PR) or have to pay bail – cash or a promise to pay cash if they don’t show up for their trial.

If commissioners go though the trouble of taking the phone call from the police and decide the defendant is low risk and can be released on PR, then may charge up to $60.

The study said that’s an incentive to charge bail when it may not be necessary.

If there is a cash bail, commissioners then tack on to that “bill” to the defendant their own $60 fee.

Or they may set a bail at an amount that they’ve calculated will leave enough money in the defendant’s pockets to also pay the $60 fee.

In that instance, said the study, bail may have been set artificially low so the defendant has money left over for the commissioner’s fee.

A third problem – one the bail commissioners complain about – is that they often do the work and then never get paid either because they let the defendant out on PR or the defendant can’t make the bail and is jailed.

“There was one month where I did close to $600 worth of free bail,” said Barbara Gimaux, a bail commissioner in Cumberland County.

“You know that sometimes you might not be compensated,” said Richard Ross, a bail commissioner in Piscataquis County, who drives 35 miles to the jail in Dover-Foxcroft when he gets called.

“There is to a degree an incentive for (bail commissioners) to set bail in an amount for which the defendant or their family can make,” said Marie VanNostrand, the author of the 2006 study.

She added, “The idea of a bail commissioner as a private citizen who’s compensated by the defendant is unique.”

None of the bail commissioners interviewed for this series said that they have ever been influenced by whether or not they would be paid.

And Ross added he doesn’t mind occasionally not getting paid. “There’s a lot more to it than the $60. … I would volunteer to do it even if they just paid my miles, paid my gas.”

Robert Mullen, deputy chief judge of the district courts, said he would discipline commissioners who abused the compensation system.

“The bail commissioners are told when they first start, and they’re told at the trainings, that their fee is independent of their obligation to process someone’s bail and there will be situations where they don’t get paid,” he said. “If it were brought to our attention that someone was setting bail on defendants’ ability to pay; heard suspicion that they set higher than they should have so they wouldn’t have to go in; if anybody does that and it’s proven that they do that, then they won’t be a bail commissioner.”

The study recommended, “Bail Commissioner compensation be reformed in such a way that it addresses the … documented problems, specifically, removing any financial incentive that could influence bail setting practices and ensuring that Commissioners are adequately compensated for their services in all circumstances.”

Based on the report, in 2009, the Legislature raised the the fee from $40 to $60, but never reformed the system of payment.

“The work kind of ended when the final report came out,” said Mark Westrum, a former sheriff and the current administrator of the Two Bridges Regional Jail in Wiscasset, who served on the committee.

“The Legislature embraced some of it, but there was nobody pushing to implement the study, there’s no oversight,” he said.

— Maine Center for Public Interest Reporting

This story was edited on April 8, 2011, to correct the amount of money bail commissioners can charge when defendants are released on personal recognizance.