EDITORIAL – Bail system reform long overdue

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In the first two parts of its series on the state bail system, which has run in this newspaper, the Maine Center for Public Interest Reporting demonstrated how bail commissioners are usually lacking in legal training, and sometimes unaware of a defendant’s history when setting bail.

In the third part of the four-part series, running this week, the center reports that bail-setting criteria vary widely by county and commissioner, and that the system in place offers commissioners incentive to set a bail that does not reflect the circumstances of the case.

As a whole, the series describes an underfunded system rife with inconsistencies and opportunities for injustice. Fortunately, a study commissioned by a Legislative committee has laid out well the problems facing the system and how to fix them. Unfortunately, state government has shown little interest in implementing the reforms, even those that would have minimal cost.

Where reforms have been sought and implemented, they appear to have been successful. The study, published in 2006, found that bail commissioners at the time were rarely able to quickly access information regarding a defendant’s criminal history. The bail could then be set either too low or too high, either way a poor outcome for the justice system. A follow-up conducted in 2009 found many of the same problems.

However, officials interviewed by the Maine Center for Public Interest Reporting said the flow of information has been greatly improved in the last few years as more complete computerized records have been compiled.

“The chance that a single individual will have a complete criminal record when a bail commissioner is setting bail?” said Doug Birgfeld, chief technology officer for the state courts. “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. We’ve gone now from 50 to 85 percent or 90.”

The other problems with the bail system have not been addressed with nearly as much success. In some cases, it is likely a matter of cost. The bail system in Maine is cheap, as the bail commissioners are independent contractors who are paid by the defendants themselves. Implementing automated fingerprint identification systems at county jails, as suggested in the 2009 update to the study, would require funding the state does not have. The same goes for expanded pretrial services, which would allow for investigations into a defendant prior to an initial court appearance.

But steps should be taken to end the conflict of interest that exists when bail commissioners are paid directly by defendants, and there should be a uniform standard for setting bail that applies across the state. Solutions to both of these issues certainly exist and could be implemented at minimal cost.

It is time that the bail system reflected the consistency in the treatment of defendants that is a cornerstone of our justice system.

Ben Bragdon is the managing editor of Current Publishing. He can be reached at bbragdon@keepmecurrent.com or followed on Twitter.

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