Presumed Innocent but Already Sentenced: 72 Hour Hold for Prisoners

48, 72, what's the big deal? Image: kangotrageler via flickr

Current Maine Law says that prisoners can't be held for more than 48 hours before seeing a judge. At that hearing, the judge will review the evidence to determine if there is probable cause to believe the person committed a crime and will set bail. In some areas, jails and courts have been unable to comply with the 48 hour rule and so prisoners have been detained longer than allowed, some have even been released since continued detention was illegal. Naturally, Maine's Judicial apparatus is scrambling to fix the problem. You might expect that procedures will change and funding will increase to ensure that every defendant gets a hearing within 48 hours. Unfortunately, you'd be wrong. Instead, the proposal is to change the rule and allow for detention of up to 72 hours without a hearing.

Changes to Rules 5 and 5C

The increase from 48 to 72 hours is part of a larger set of proposed changes to the Maine Rules of Criminal Procedure. The change here would modify rule 5 to add the underlined text and to remove the strikethrough text. Similar changes are also proposed to Rule 5C which pertains to to felonies:

(a) Initial Appearance Before the Court. A defendant arrested for a Class D or Class E crime (and not charged with related Class C or higher crimes), (i) under a warrant issued upon a complaint filed in the District Court or the Superior Court or (ii) without a warrant but a probable cause determination having been made in accordance with Rule 4A, who is not sooner released, shall be brought before a District Court judge or a Superior Court justice without unnecessary delay and in no event later than 4872 hours after the arrest, excluding Saturdays, Sundays, legal holidays, and court holidays. Such appearance may be by audiovisual device in the discretion of the court. If such appearance has not taken place within 3648 hours after the arrest, the custodian shall notify the attorney for the state and the clerk of court of the upcoming deadline. If such appearance has not taken place within 4872 hours after the arrest, excluding Saturdays, Sundays, legal holidays and court holidays, the custodian shall release the defendant from custody or bring the defendant forthwith before the District Court or the Superior Court for such appearance.

A few things are worth noting:

1. The 72 hours limit does not include weekends or holidays. That means a person arrested on a Friday before a Monday holiday could legally be detained until the following Thursday without a hearing.
2. The change does not alter Maine Rule of Criminal Procedure 4A which still requires a probable cause determination within 48 hours of arrest including holidays or weekends. That determination can be made by a judge or a justice of the peace. This is to ensure compliance with the supreme court's decision in County of Riverside v. McLaughlin. Defendants can only be held for longer than 48 hours if there has been a P.C. determination within the first 48.
3. The jail must now notify the clerk if the person has not had an initial appearance within 48 hours. The prior rule only required notice to the prosecution, but the notice was to be given after 36 hours since the rule only allowed for 48 hours of pre-hearing detention.

Presumed Innocent but Already Sentenced

The biggest issue is that allowing longer initial detention means many prisoners will serve their sentence before they ever see a courtroom. That's because the prosecutor's sentencing recommendation for many crimes is something between 1 and 7 days in jail. It's a daunting sentence for someone who is free, but the rule change means many people will appear before a judge having already served the sentence likely to be imposed and more people will simply plead guilty at initial appearance and be sentenced to "time served."

These guilty pleas are entered after consulting with a lawyer for maybe a few minutes. Defendants who plead guilty at initial appearance rarely understand that a conviction might mean future offenses will be charged as felonies, or that they can't get federal housing, or student loans, or keep their driver's license, or stay in this country.

Certainly, pleading guilty is the best option for some, but many have legitimate defenses. Sitting in jail for several days, serving the sentence before seeing a judge really changes the prisoner's calculus. Even if they have a defense, many won't be willing to spend months fighting when, win or loose, they've already done the time.

While the rule change would be a benefit for judicial economy, the jail's procedure, and the prosecution's statistics, it's a detriment to arrestee whose rights and liberty are at stake. They are the only constituency with anything to loose but they're also the only constituency with no political influence.

Public hearing on the proposed changes is set for September 12, 2013 at 1:30 p.m.

UPDATE: The proposed change was withdrawn 9/4/13. Hit the link to read my newer post with more information.