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An Act To Enhance Pretrial Justice through Risk-based Decision Making with Enhanced Diversion, Release and Treatment Options for Eligible Defendants
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 15 MRSA §1002, as amended by PL 1997, c. 585, §1, is further amended by adding at the end 2 new paragraphs to read:
It is the intent of the Legislature that this chapter be liberally construed to effectuate the purpose of primarily relying upon pretrial release by nonmonetary means, such means identified by the use of risk assessments, to reasonably ensure the appearance of the defendant as required, to otherwise reasonably ensure the integrity of the judicial process and, when applicable, to reasonably ensure the safety of others in the community.
It is the intent of the Legislature that the pretrial release process be instrumental in identifying and diverting into treatment defendants with substance abuse or mental health issues.
Sec. 2.  15 MRSA §1003, sub-§8-B  is enacted to read:
 
8-B.  Needs screening.     "Needs screening" means a preliminary systematic procedure to evaluate the likelihood that a defendant has a substance abuse or a mental health condition.
Sec. 3.  15 MRSA §1003, sub-§10-A  is enacted to read:
 
10-A.  Risk assessment.     "Risk assessment" means a pretrial actuarial assessment that is designed to be predictive of a defendant's failure to appear in court and risk of violating pretrial conditions of release with a new alleged offense.
Sec. 4. 15 MRSA §1026, sub-§3, ¶A, as amended by PL 2015, c. 436, §4, is further amended to read:
 
A. If, after consideration of the factors listed in subsection 4, the judicial officer determines that the release described in subsection 2-A will not reasonably ensure the appearance of the defendant at the time and place required, will not reasonably ensure that the defendant will refrain from any new criminal conduct, will not reasonably ensure the integrity of the judicial process or will not reasonably ensure the safety of others in the community, the judicial officer shall order the pretrial release of the defendant subject to the least restrictive further condition or combination of conditions that the judicial officer determines will reasonably ensure the appearance of the defendant at the time and place required, will reasonably ensure that the defendant will refrain from any new criminal conduct, will reasonably ensure the integrity of the judicial process and will reasonably ensure the safety of others in the community. These conditions may include that the defendant:
 
(1) Remain in the custody of a designated person or organization agreeing to supervise the defendant, including a public official, public agency or publicly funded organization, if the designated person or organization is able to reasonably ensure the appearance of the defendant at the time and place required, that the defendant will refrain from any new criminal conduct, the integrity of the judicial process and the safety of others in the community. When it is feasible to do so, the judicial officer shall impose the responsibility upon the defendant to produce the designated person or organization. The judicial officer may interview the designated person or organization to ensure satisfaction of both the willingness and ability required. The designated person or organization shall agree to notify immediately the judicial officer of any violation of release by the defendant;
 
(2) Maintain employment or, if unemployed, actively seek employment;
 
(3) Maintain or commence an educational program;
 
(4) Abide by specified restrictions on personal associations, place of abode or travel;
 
(5) Avoid all contact with a victim of the alleged crime, a potential witness regarding the alleged crime or with any other family or household members of the victim or the defendant or to contact those individuals only at certain times or under certain conditions;
 
(6) Report on a regular basis to a designated law enforcement agency or other governmental agency;
 
(7) Comply with a specified curfew related to a risk identified after a risk assessment performed under subsection 8;
 
(8) Refrain from possessing a firearm or other dangerous weapon;
 
(9) Refrain from the possession, use or excessive use of alcohol and from any use of psychoactive substances or illegal drugs. A condition under this subparagraph may be imposed only upon the presentation to the judicial officer of specific facts demonstrating the need for such condition;
 
(9-A) Submit to:
 
(a) A random search for possession or use prohibited by a condition imposed under subparagraph (8) or (9); or
 
(b) A search upon articulable suspicion for possession or use prohibited by a condition imposed under subparagraph (8) or (9);
 
(9-B) When indicated by a needs screening, undergo a clinical assessment by which a licensed counselor identifies and evaluates the defendant's strengths, weaknesses, problems and needs for the development of a treatment plan for a substance abuse issue, a mental health issue or both and comply with the recommended treatment plan;
 
(10) Undergo, as an outpatient, available medical or, psychiatric or substance abuse treatment, or enter and remain, as a voluntary patient, in a specified institution when required for that purpose;
 
(10-A) Enter and remain in a long-term residential facility for the treatment of substance abuse;
 
(11) Execute an agreement to forfeit, in the event of noncompliance, such designated property, including money, as is reasonably necessary to ensure the appearance of the defendant at the time and place required, to ensure that the defendant will refrain from any new criminal conduct, to ensure the integrity of the judicial process and to ensure the safety of others in the community and post with an appropriate court such evidence of ownership of the property or such percentage of the money as the judicial officer specifies;
 
(12) Execute a bail bond with sureties in such amount as is reasonably necessary to ensure the appearance of the defendant at the time and place required, to ensure that the defendant will refrain from any new criminal conduct, to ensure the integrity of the judicial process and to ensure the safety of others in the community;
 
(13) ReturnIf no other options are feasible, return to custody for specified hours following release for employment, schooling or other limited purposes;
 
(14) Report on a regular basis to the defendant's attorney;
 
(15) Notify the court of any changes of address or employment;
 
(16) Provide to the court the name, address and telephone number of a designated person or organization that will know the defendant's whereabouts at all times;
 
(17) Inform any law enforcement officer of the defendant's condition of release if the defendant is subsequently arrested or summonsed for new criminal conduct;
 
(18) Satisfy any other condition that is reasonably necessary to ensure the appearance of the defendant at the time and place required, to ensure that the defendant will refrain from any new criminal conduct, to ensure the integrity of the judicial process and to ensure the safety of others in the community; and
 
(19) Participate in an electronic monitoring program, if available and if a defendant has been determined to be high-risk based on an assessment under subsection 8.
Sec. 5. 15 MRSA §1026, sub-§3, ¶B, as repealed and replaced by PL 2007, c. 518, §3, is repealed.
Sec. 6. 15 MRSA §1026, sub-§4, ¶B, as enacted by PL 1987, c. 758, §20, is amended to read:
 
B. The nature of the evidence against the defendant; and
Sec. 7. 15 MRSA §1026, sub-§4, ¶C, as amended by PL 2011, c. 680, §2, is further amended to read:
 
C. The history and characteristics of the defendant, including, but not limited to:
 
(1) The defendant's character and physical and mental condition;
 
(2) The defendant's family ties in the State;
 
(3) The defendant's employment history in the State;
 
(4) The defendant's financial resources;
 
(5) The defendant's length of residence in the community and the defendant's community ties;
 
(6) The defendant's past conduct, including any history relating to drug or alcohol abuse;
 
(7) The defendant's criminal history, if any;
 
(8) The defendant's record concerning appearances at court proceedings;
 
(9) 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;
 
(9-A) Any evidence that the defendant poses a danger to the safety of others in the community, including the results of a validated, evidence-based domestic violence risk assessment recommended by the Maine Commission on Domestic and Sexual Abuse, established in Title 5, section 12004-I, subsection 74-C, and approved by the Department of Public Safety;
 
(10) 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
 
(11) Whether the defendant has previously violated conditions of release, probation or other court orders, including, but not limited to, violating protection from abuse orders pursuant to Title 19, section 769 or Title 19-A, section 4011.;
Sec. 8.  15 MRSA §1026, sub-§4, ¶¶D and E  are enacted to read:
 
D.  The results of:
 
(1) A validated risk assessment instrument as described in subsection 8; and
 
(2) A validated, evidence-based domestic violence risk assessment recommended by the Maine Commission on Domestic and Sexual Abuse, established in Title 5, section 12004-I, subsection 74-C, and approved by the Department of Public Safety; and
 
E.  The results of a needs screening described in subsection 9.
Sec. 9.  15 MRSA §1026, sub-§§8 to 10  are enacted to read:
 
8.  Risk assessment.     A pretrial risk assessment must be conducted using a validated risk assessment instrument approved by the Department of Public Safety that meets the requirements of this subsection.
 
A.  The approved validated risk assessment instrument must be objective, standardized and developed based on analysis of empirical data and risk factors relevant to the risk of failure to appear in court when required and risk to the safety of others in the community.
 
B.  The approved validated risk assessment instrument must gather demographic information about the eligible defendant, including, but not limited to, race, ethnicity, gender and financial resources. Recommendations for pretrial release may not be discriminatory based on race, ethnicity or gender.
 
9.  Needs screening.     The judicial officer may request that a needs screening of the defendant be conducted prior to the determination of the conditions of release to obtain a preliminary indication of whether a defendant has a substantial substance abuse issue, mental health issue or both that would warrant a requirement of a more detailed clinical assessment.
 
10.  Confidentiality.     Information obtained from the defendant during the risk assessment or needs screening is confidential and may be used only for determining bail, conditions of release and appropriate services for the defendant in the pending case and may not be used in the prosecution of the pending case.
 
SUMMARY
This bill amends the Maine Bail Code to require the development and use of a risk assessment instrument for determining appropriate pretrial release conditions, as well as a needs screening and, as necessary, a clinical assessment with regard to substance abuse or mental health issues of defendants to identify defendants appropriate for diversion to treatment. The bill prohibits the use of monetary bail.