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

The defendants already have 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-dollar 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.

The Maine Center for Public Interest Reporting has conducted two dozen interviews and reviewed studies and legislation about Maine’s bail system, which retains some of its 19th century beginnings.

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 person whose bail they set, reveal a system in need of updating.

Marie VanNostrand is a Florida-based criminal justice consultant who conducted a 2006 pretrial 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 that “$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 whether 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 whether the defendant was cooperative when arrested. He also would want to know whether the defendant has a job that jail time might interrupt, whether he “comes from a nice family” or whether he has children at home who depend on him.

Audrey Street, a bail commissioner in Penobscot County, said she would want to know whether 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 whether 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, lawyer Gale said.

“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, “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 a day to keep a defendant in the Lincoln-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’ 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.

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 or 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. “

Westrum said, if he had his way, bail commissioners would be certified through 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 we [law enforcement] hold,” 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.

Funding 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,” said Kennedy.

“Because we don’t have any money, I don’t think we’ll need to worry about a new system anytime 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, says 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.