In Maine, almost all defendants arrested and charged with a new offense have a right to bail and those who can bail out stand a much better chance of resolving their case in a favorable way. But having a right to bail does not mean that every defendant will be released pending trial. To understand how bail works in Maine, you need to know something about who sets bail, the different kinds of bail and what happens when conditions are violated. This article covers the following topics, use the links to jump to that section:
- Why it’s Important to get bailed out
- When and how bail is set in Maine
- Types of bail: promise, cash, surety, supervision
- Preconviction bail for those accused
- Postconviction bail for those found guilty
- Options for getting bail reduced
- Violating Conditions of Release & Bail Revocation
The Importance of Bail
When a person is accused of a crime, they are presumed innocent, but they are in a very different situation than the ordinary citizen not suspected of criminal wrongdoing. The idea is that, when there is probable cause to believe the defendant has committed some crime, the person’s liberty can be limited while the charges are pending. It could be months or years before a criminal case is resolved, and without bail, the defendant will remain in custody at the county jail until resolution. Being out on bail allows the accused to do several important things:
- Have free access to their attorney
- Access their own property including documents, emails, texts, bank information and other records that might help the defense.
- Associate with friends and family who know something about the allegations and who might know or learn information that helps the defense.
- Take advantage of education, counseling, drug treatment, mental health treatment and other rehabilitation programs not available to those in custody.
- Begin to build a track record of compliance with bail conditions, sobriety, steady employment or academic success so that they can argue to the prosecutor and judge that they are already on the road to rehabilitation.
It’s no surprise then that, all things being equal, a defendant who bails out of jail will very likely receive a more favorable resolution of their case than one who is detained pretrial. Studies have confirmed this, and a recent project from Harris County Texas concludes that defendants who get bailed do better than those who are detained. Bailed defendants have:
- 86% fewer pretrial jail days
- 333% better chance of getting deferred adjudication
- 30% better chance of having all charges dismissed
- 24% less chance of being found guilty, and
- 54% fewer jail days sentence
Other studies have reached similar results. The New York City Criminal Justice Agency is a good resource on these issues. Click this link to read their bail studies. The Maine bail code is found at Title 15, Chapter 105-A and most of the statutory references below are in that chapter.
Getting Bail Set: Bail Commissioners and Judges
When police believe a crime has been committed they will either arrest or summons the defendant. If the person is “summonsed,” they are served with a paper ticket giving them a court date to appear before a judge to answer to the charges. If they are arrested they will be brought to the county jail and will usually have bail set by a bail commissioner who will charge a $60 fee for the service.
A bail commissioner has wide discretion to set bail at what they think is appropriate. But they can’t set bail for some offenses: Title 15 §1023 prevents a bail commissioner from setting bail if the defendant is charged with certain domestic violence offenses:
- Violating a Protection from Abuse Order by contacting the victim or in certain other specified ways.
- Any felony assault or other offense against the person under Title 17-A, chapter 9.
- Any felony sexual assault
- Criminal restraint involving a child under 8
- Most felony domestic violence stalking, threatening, terrorizing, or reckless conduct
That section also provides that, in any domestic violence case, a bail commissioner should not set bail before making an effort to learn:
- A brief history of the alleged abuser
- The relationship of the parties
- The name, address, phone number and date of birth of the victim
- Existing conditions of protection from abuse orders, conditions of bail and conditions of probation and
- Information about the severity of the alleged offense
This language was recently added in response domestic violence related homicides in Maine. It does not prohibit setting bail for misdemeanor crimes like domestic violence assault, but it does mean that defendants arrested for domestic violence offenses will receive increased scrutiny and will be less likely to obtain release immediately after arrest.
Bail Set by Judges
If the defendant is not eligible for bail commissioner bail, or is not able to make the amount set, they will be held until they are brought before a judge. Maine Rules of Criminal Procedure 5 and 5C allow detention for 48 hours, excluding weekends and holidays, before a defendant must see a judge. The judge will do two things at that initial hearing:
- Determine whether there is probable cause to believe that the defendant committed the offenses charged
- Set bail if there is probable cause.
The judge at this “initial appearance” hearing gives no weight to any bail amount or conditions set by a bail commissioner. At this hearing, the prosecutor will ask the judge to set bail at some amount with certain conditions, a defense attorney can appear with the defendant and can argue that the bail should be something less, or that the conditions should be less restrictive. Often, an attorney can meet with the prosecutor before the hearing and might reach an agreement on the bail terms. In serious cases, this avoids the potential for the judge to set bail even higher than the prosecution recommends.
Forms of Bail, Conditions, Cash, Real Estate, Supervision
Bail in Maine can take several forms:
- Personal Recognizance or PR bail: Here the defendant is released with conditions and on their promise to appear at court. No money is deposited.
- Unsecured bail: A dollar amount of bail is set, Say $1000, but the defendant does not need to pay the money they are released on conditions and with a promise to appear. If they violate their bail the state of Maine can require them to pay the dollar amount of the unsecured bail.
- Cash bail: A dollar amount is set along with conditions of bail. The defendant or someone acting on their behalf must actually deposit that amount of cash to get the person out of jail. If they violate bail the money can be forfeited to the state.
- Surety bail: If the judge allows it, real estate value can be used as bail security. The bail might be set at $1000 cash or $10,000 surety. To post the surety bail a person must own real estate in Maine and have documentation proving that they have Equity equal to or greater than the surety amount. They must then agree to have a bail lien in that amount recorded against their property in the Registry of Deeds. The lien will be lifted once the bail is released. The State could sell the house or take title to it if the defendant violates bail.
- Supervision contract: some agencies such as Maine Pretrial Services Will supervise defendants were released on bail. They must meet certain screening and eligibility criteria and must agree to sign a supervision contract that will require them to check in by telephone and in-person and to abide by additional conditions that the supervision agency sets. Releases often set at personal were recognizance “with a contract” but can include an unsecured, cash, or surety component. The bail might then be “$500 with a contract.”
First Party Bail Might Never be Returned
Cash bail can be posted as either first or third party bail. The default position is to accept bail money as first party bail, designating that the person being bailed out owns that money. With third-party bail, some other person posts the money for the defendant and designates on the bail form that they own the money. First party bail can be automatically forfeited if the judge finds a person violated their conditions in any way. Maine has no “bail bondsmen” and so any cash amount set must be paid in full before the defendant can be released.
Defendants who don’t violate their bail often expect that money to be returned to them at the close of the case, this rarely happens. First party bail can be automatically taken by the court once the case concludes it will be used to pay fines, court-appointed counsel fees or any other debt owed anywhere in the state such as back taxes, child support, or fines on unrelated matters.
Third Party Bail, a Safer Option
When possible, the best practice is to have cash bail posted as third-party bail. The process to forfeit third party bail requires the court to notify the third party and provide a hearing where the judge will decide what to do with the money. This rarely happens and, even if there is a bail violation the money is usually returned to the 3rd party. Judges will sometimes set the bail amount and order “no third-party” so that the bail can be more easily forfeited in the event of a violation. Even attorneys commonly misunderstand this to mean that no person but the incarcerated defendant can’t post the bail. This is not true; any person can post a bail but they will be prohibited from designating it has their money and it will be deemed to be the defendants cash, even though it’s not.
In practice, 1st party cash bail is sometimes forfeited but third-party cash almost never is. I have never seen or heard of a defendant who violated bail having to pay the unsecured amount. I have never seen or heard of a court taking someone’s home or otherwise enforcing the lien in a surety bail. The main mechanism to enforce bail conditions it to arrest the defendant and charge them with the new crime of “violating conditions of release.” Defendants who violate bail conditions almost invariably find themselves back in custody and may have a very difficult time obtaining pretrial release again.
It’s not surprising then that the amount of bail has no measurable impact on a person’s compliance with conditions and appearance in court. A recent study from the Pretrial Justice Institute shows that unsecured bonds are as effective as cash bail in assuring appearance in court, public safety and apprehension of those who do abscond. Still Maine courts will set bail at higher amount in more serious cases and will often set bail high enough that the defendant has no chance of getting out.
Pre-Conviction Bail: Accused of a Crime, Presumed Innocent
Many don’t realize that the initial appearance date is also a probable cause hearing in Maine. Under Rule 4A of the Maine Rules of Criminal Procedure, The prosecution must provide a complaint, affidavit, or testimony sufficient to make out all the elements of the offense charged. In practice, they provide the police reports incorporated into an affidavit. If a case is weak or poorly investigated the defense attorney can challenge probable cause. If the judge finds that some element is not properly alleged, then there is no probable cause and the court lacks authority to set bail. The case is not dismissed but the defendant must be released with notice of their next court date.
Objectives of Bail
If probable cause if found, then bail will be set. Unless they are charged with murder, a defendant accused of a crime has a right to bail under Maine law. Title 15 §1026 provides that bail should be set on the least restrictive conditions and lowest amount needed to ensure:
- The appearance of the defendant at the time and place required,
- That they will refrain from any new criminal conduct,
- The integrity of the judicial process (that the defendant will not try to improperly influence witnesses or other players)
- The safety of others in the community.
§1026(2-A) makes clear that Personal Recognizance or unsecured bail should be set unless these four goals will not be met by that release. If secured bail is set §1026(3)(B) provides that the court “may not impose a financial condition that, either alone or in combination with other conditions of bail, is in excess of that reasonably necessary” to protect these goals.
Factors the Court Considers in Setting Bail
In order to determine what amount and what conditions of bail to set, §1026(4) requires the judge to consider the following factors.
A. The nature and circumstances of the crime charged;
B. The nature of the evidence against the defendant; and
C. The history and characteristics of the defendant, including, but not limited to:
- The defendant’s character and physical and mental condition;
- The defendant’s family ties in the State;
- The defendant’s employment history in the State;
- The defendant’s financial resources;
- The defendant’s length of residence in the community and the defendant’s community ties;
- The defendant’s past conduct, including any history relating to drug or alcohol abuse;
- The defendant’s criminal history, if any;
- The defendant’s record concerning appearances at court proceedings;
- Whether, at the time of the current offense or arrest, the defendant was on probation, parole or other release pending trial, sentencing, appeal or completion of a sentence for an offense in this jurisdiction or another;
- Any evidence that the defendant poses a danger to the safety of others in the community;
- Any evidence that the defendant has obstructed or attempted to obstruct justice by threatening, injuring or intimidating a victim or a prospective witness, juror, attorney for the State, judge, justice or other officer of the court; and
- Whether the defendant has previously violated conditions of release, probation or other court orders.
Understand that the bail hearing is not a time to try the case. In fact, the court should be less concerned about the details of the allegations then the factors that more directly impact the defendant’s chances of complying with bail conditions.
Post Conviction Bail: Convicted But Not in Custody
Postconviction bail is a lot less common than it’s pre-conviction brother. It applies to defendants who have been found guilty either after trial or plea but who have not yet been sentenced, or for some other reason have their case still pending. Title 15 §1051 provides that a defendant shall not be admitted to postconviction bail unless the judge has probable cause to believe that:
- A. There is no substantial risk that the defendant will fail to appear as required and will not otherwise pose a substantial risk to the integrity of the judicial process;
- B. There is no substantial risk that the defendant will pose a danger to another or to the community; and
- C. There is no substantial risk that the defendant will commit new criminal conduct
Obviously that’s a much tougher standard to meet. One common postconviction bail scenario is where a defendant pleads guilty and is granted a stay allowing him to report to serve the sentence at a later date. Most judges are pretty liberal with granting bail under these circumstances.
The postconviction bail standard also applies to probation violations and violations of deferred dispositions. A defendant arrested for violating probation or deferral conditions may have a very difficult time overcoming the presumption that they should be detained.
Getting Bail Reduced: Motion to Modify or De Novo Review
When defendants have bail set at initial appearance they are often represented by a “lawyer of the day.” That lawyer will often argue bail as best they can with limited knowledge of the defendant and limited information about the case. Given these circumstances, most courts will allow retained or appointed counsel to address bail a second time without needing to show any particular reason for the bail review.
But the court will not allow an unlimited number of bail hearings. Once bail is set, Title 15 §1026(3)(C) requires that a defendant who wants to change the amount or the conditions of bail must file a motion which alleges either a change in circumstances, or discovery of some new and significant information.
Maine Rules of Criminal Procedure 46(b)(1) and Title 15 §1028 allow a defendant who is in custody as a result of a decision of a Judge of the District Court or a bail commissioner to petition the Superior Court for a de novo determination of bail. A superior court Judge will review the bail with no deference to the lower court’s determination. No change in circumstances needs to be alleged.
Violating Conditions of Release: New Charges and Motions to Revoke Bail
Many are surprised to learn that, as provided by Title 15 §1026(7). “A condition of release takes effect and is fully enforceable as of the time the judicial officer [meaning bail commissioner, clerk or Judge] sets the condition, unless the bail order expressly excludes it from immediate applicability.” That means that even a defendant who never bails out of jail can violate conditions of release. Often this occurs when a domestic violence defendant tries to call his wife from jail in violation of a no contact condition. People who do bail out can be re-arrested for any bail violation no matter how minor: in effect, bail makes things that were never a crime, like drinking a beer, an arrestable offense.
Felony Bail Violation
Title 15 §1092 provides that Violating Conditions of Release (VCR) is a Class E misdemeanor offense, but it can be charged as a Class C felony if the defendant is released on bail for a felony an violates bail by:
- Having contact with the victim, witness or other prohibited person
- Possessing a firearm or other dangerous weapon
- Failing to remain in a residential drug treatment facility
- Failing to return to custody after some limited temporary release
Bail Commissioners Can’t Set Bail
A person arrested for violating of conditions of release still has a right to bail on that VCR charge, however, §1092(4) provides that a bail commissioner can’t set bail for certain VCR offenses:
- Where the violation is for committing new criminal conduct which is a felony offense, or which is a misdemeanor involving domestic violence, sexual assault pursuant to Title 17-A, chapter 11 or sexual exploitation of minors pursuant to Title 17-A, chapter 12
- The underlying crime for which preconviction bail was granted is any kind of felony
- The underlying crime for which preconviction bail was granted is a crime involving domestic violence, sexual assault pursuant to Title 17-A, chapter 11 or sexual exploitation of minors pursuant to Title 17-A, chapter 12.
Bail can be Revoked
These defendants will need to appear before a judge to have new bail set. While they will have a right to preconviction bail on the new VCR charge, it is possible that their older bail will be revoked if the State files a motion to revoke bail.
Title 15 §1096 provides that a pre or postconviction bail order may be revoked if the court determines that:
- Probable cause exists to believe that the defendant has committed a new crime following the setting of preconviction bail or;
- Clear and convincing evidence exists that the defendant has failed to appear as required or has violated any other condition of the preconviction bail.
A judge who revokes bail can set the bail at “no bail allowed” but this is usually reserved for serious violations. Revocations based on minor violations will often result in bail being revoked but re-set at some higher amount or with additional conditions. The defendant has a right to a hearing on the state’s motion to revoke where evidence must be presented and the judge will determine whether the bail has been violated.
Image from San Diego Shooter via flickr