An Act To Enhance Pretrial Justice through Risk-based Decision Making with Enhanced Diversion, Release and Treatment Options for Eligible Defendants
Maine Legislature, Session 128, LD 1268
Committee: Criminal Justice and Public Safety
Sponsors: MALABY, BRAKEY, CHACE, MADIGAN, PERRY, SANDERSON
Amends: 15 MRSA §1002, 15 MRSA §1003, 15 MRSA §1026

Legislative Document
No. 1268
H.P. 880
House of Representatives, March 30, 2017
An Act To Enhance Pretrial Justice through Risk-based Decision 
Making with Enhanced Diversion, Release and Treatment Options 
for Eligible Defendants
Reference to the Committee on Criminal Justice and Public Safety suggested and ordered 
printed.
ROBERT B. HUNT
Clerk
Presented by Representative MALABY of Hancock.
Cosponsored by Senator BRAKEY of Androscoggin and
Representatives: CHACE of Durham, MADIGAN of Waterville, PERRY of Calais, 
SANDERSON of Chelsea.
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)  Return If 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.