Basic Information about Bail in Maine
In my first criminal law post, I mentioned the court’s setting of bail at the defendant’s first appearance. So what is bail, anyway?, you may be wondering. Or you may think you know what bail is but have some misconceptions.
Bail is, in essence, the way an arrested defendant is able to get out of jail. It is a tool to ensure a criminal defendant shows up for court dates and doesn’t commit new crimes while charges are pending. It is also a constitutional right when someone has been charged with but not convicted of a crime. It can be cash or surety (like when someone pledges a house), and sometimes it can be unsecured. “Unsecured” means no money has to be posted, but the defendant will owe money to the state if the bail conditions are broken. In some cases the defendant gets P.R. (personal recognizance) bail, which means, in effect, he or she promises to show up for all court dates and obey the law. Violation of one’s bail conditions is a crime unto itself. In fact, I’ve had clients who were charged with violation of bail and the crime of failure to appear in court based on the same failure to appear; it is (supposedly) not a violation of the constitutional protection against double jeopardy to charge someone with both. Alleged violation of a bail condition can lead to a motion to revoke bail, which means the defendant can be held without bail until resolution of the legal matter at issue.
Other states, I hear, follow somewhat different procedures for setting financial bail for accused criminals; for example, some states use “bail bondsmen.” I’ve also heard that in some states defendants have to post only a portion of the cash bail amount. However, in Maine, there’s no bail bond business. Bail is sometimes set initially by a bail commissioner, but the critical bail determination is made by a judge at the defendant’s first appearance. If the arrested person or a third party can’t post the full amount of money required then he or she is stuck in jail pending resolution of the charges. (Also, the bail commissioner must be paid a fee of $60, unless a judge has set P.R. or unsecured bail.) Bail is usually a pre-trial (or pre-conviction) issue, but it sometimes must be set after a conviction; for example, if someone is free until a certain date and time when he or she must show up at the jail to serve a sentence, post-conviction bail may be set.
I think bail as a process is in desperate need of radical reform, especially because people who can’t post their bail often are stuck in jail for months, despite the presumption of innocence. I could write a long rant here, but I’m trying to keep my posts simple and informative.