Portland racial equity panel considers ways to replace bail

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With less than two months before its final report to the Portland City Council is due, the panel considering racial justice changes for the city is discussing what members acknowledge would be hard-to-sell recommendations to revise bail laws for imprisoned people of color and people from marginalized communities.

Racial Equity Steering Committee member Abdul Ali on March 11 told his colleagues that bail is “a charge for people that are poor.” He said his proposal for changes isn’t a blanket recommendation to eliminate bail, but to assist people from marginalized communities who can’t pay cash bail when they are arrested, and often sit in jail awaiting trial, even if they are innocent.

Portland Racial Equity Steering Committee member Abdul Ali believes bail is “a charge for people that are poor” and its use should be reconsidered.

Cumberland County District Attorney Jonathon Sahrbeck, a member of the committee, said this would be a challenge for the city because state law generally supersedes city ordinances. The Maine bail code lays out the law governing bail, he said, so judges would likely refer to that even if Portland created its own ordinance.

A bail reform bill is also making its way through the Maine Legislature. LR 1831 would strengthen due process for those accused of crimes; require judges or bail commissioners to consider if a person is a primary caretaker, could lose their job, or if there are health-care needs that are better met outside of jail before setting a person’s bail; and would eliminate cash bail for minor offenses, including public drinking and low-level drug possession.

The ACLU of Maine supports the bill, which is sponsored by Rep. Rachel Talbot Ross, D-Portland.

Committee member Kate Knox, who is also the city’s lobbyist at the Legislature, along with committee member and City Councilor Pious Ali, said it is possible for the city to have a say in the matter in Augusta. However, Ali cautioned it’s possible the City Council Legislative Committee, which he chairs, may not be able to fully vet and discuss the proposal before it makes its way to lawmakers.

Sahrbeck said while it’s not unheard of for cities to eliminate cash bail – Washington D.C. eliminated cash bail years ago, he said, while Illinois became the first state to ban the practice outright this year – the more common practice is a diversion program.

Diversion programs are forms of pretrial sentencing, where an alleged offender agrees to take part in a rehabilitation program that addresses the underlying behavior. In exchange for completing the program, the accused avoids conviction and a mark on their permanent record.

Maine has a diversion program for shoplifting, an adult drug treatment court, a substance use and prevention treatment program, a community service program, and programs for nonviolent offenders.

The committee informally agreed that a better focus than bail reform would be recommending that the city invest in or create diversion programs that prioritize people of color and those from marginalized communities.

The committee is expected to have its final recommendations back to the City Council in April. It has already delivered an interim report, which called for dissolving the Police Citizen Review Subcommittee and replacing it with a much stronger group to oversee the Police Department.

Additionally, the interim report called for the creation of a department of racial equity at City Hall as well as a permanent racial equity board to evaluate city policies for overt racism and bias.

The steering committee was formed last summer after the death of George Floyd, an unarmed Black man who was in the custody of Minneapolis police officers. The trial of a police officer accused in that case is now underway.

Along with nationwide protests, there were local protests, most notably on June 1 when police and protesters clashed, more than 20 people were arrested, and officers deployed pepper spray. The city has hired the Clifton Larson Allen consulting firm to complete an independent investigation into how the protests were handled by the Police Department.