In the past week, two men recently released on bail on misdemeanor charges allegedly killed four people in two counties, giving rise to questions about how bail is set, who sets it and what factors go into making those decisions.
Rayshaun Moore, 34, of Bangor had been released from the Penobscot County Jail less than 10 hours before he allegedly stabbed Demetrius Snow to death in a nightclub parking lot early Saturday morning.
Moore was released on personal recognizance bail after appearing before a judge Friday and pleading not guilty to two misdemeanor assault charges.
The man charged in a Washington County shooting rampage Monday in which three people died and one was critically injured had been arrested Friday by a Machias police officer and charged with drunken driving.
Thomas Bonfanti, 63, of Northfield was released on $500 unsecured bail, and he was due in court March 3 for arraignment on that charge.
But on Monday, Bonfanti allegedly shot three people to death at three houses in two towns, and injured a fourth victim. His only past conviction in Maine was for drunken driving in 2007.
While Moore and Bonfanti both have minor criminal records, neither has been convicted of a felony. There was nothing in either man’s past that a judge, prosecutor or bail commissioner could point to and used to justify holding either man without bail while their cases moved through the court system.
A former Maine Supreme Judicial Court justice and the Penobscot County district attorney both said Wednesday that it is impossible to predict future violent behavior in an individual who has no history of committing violent crimes.
The purpose of bail is to ensure that defendants will appear in court for all pretrial hearings and a trial if they opt to have one, according to information posted on the Maine court system’s website. It’s not to be used as punishment. Bail is returned to defendants when their cases are concluded.
In setting bail amounts, Maine law requires that the following factors be considered: the risk of the defendant fleeing, the defendant’s ties to the community, the type of crime alleged, the defendant’s criminal history, the defendant’s ability to post cash or property as bail and the danger the defendant might pose to the community if released.
In Moore’s case, Penobscot County District Attorney Marianne Lynch said her office sought personal recognizance bail because it was seeking a fine, not jail time, on the assault charges. Plus, Moore already had spent more than 48 hours in jail when he appeared Friday before a judge. Conditions of his bail included that he not contact victims or witnesses or be at their residence or workplace, and that he not to use or possess intoxicants.
“Factors that go into the decision to ask for PR [personal recognizance] bail include what the state is asking for as an underlying sentence,” Lynch said Wednesday. “Obviously, if the state is asking for a fine only, that would be a strong consideration not to ask for cash bail.”
Lynch described Moore’s criminal history as minor, with misdemeanor convictions for assault in 2017, receiving stolen property and criminal trespassing in 2018, and theft by unauthorized taking last year.
“It’s impossible to predict dangerousness,” the prosecutor said. “There are all kinds of tools to try to assess that, but in the over a quarter of a century that I’ve been doing this, there’s no good way to predict future dangerousness.
“We can look at a lot of factors, we can prognosticate and we try to prognosticate based on past behavior,” Lynch said. “We are working in an imperfect system doing the best we can. If we knew everybody that was going to be dangerous, that would make it very easy for us to hold people.”
In Bonfanti, a bail commissioner apparently set bail at $500 unsecured, meaning he would not have to post cash upfront but could be required to post it if he violated bail conditions or missed court dates.
While other states, including New York, New Jersey and California, have implemented risk assessment tools to help determine if a person should be released on bail, risk assessment tools are used in Maine only in domestic violence assault cases. Moore was accused of assaulting friends he was visiting, not of assaulting a domestic partner or person with whom he had an intimate relationship or former intimate relationship. Bonfanti was charged with drunken driving.
Other states have begun using risk assessment algorithms to assess the risk of releasing arrestees, but they are controversial.
“Proponents of the algorithms say that imposing some mathematical regularity will lead to greater transparency and accountability, and ultimately to an improvement on the current system,” the website The Appeal reported last year. “But the reality of risk assessment algorithms is more complicated. Critics say bias can creep in at every stage, from development to implementation to application. Often that’s racial bias, but other characteristics such as age and ethnicity may also drive inequities.”
Bail reform has been a topic of conversation in the state Legislature. A January report recommended the state adopt a universal screening process to determine arrestees’ eligibility for alternative release and treatment programs. It did not recommend the implementation of a risk assessment tool for all defendants.
Judges often have said that setting bail — like issuing murder sentences — is more art than science.
Donald Alexander, a recently retired Maine Supreme Judicial Court justice, set bail for hundreds of defendants in his 20 years as a Superior and District Court judge.
“Under the law, there is a presumption in favor of bail,” he said. “Judges have to make individual assessments and hope that we are right most of the time.”
Alexander made the right call most of the time but in July 1988 he allowed Nicolo Leone to be released on bail a few days before he shot and killed an on-duty police officer.
“He was released on Thursday or Friday and killed a Lewiston police officer over the weekend,” he said. “It was a very tragic, difficult and challenging situation.”
A jury found Leone guilty of manslaughter in the shooting death of Lewiston Police Officer David R. Payne on July 23, 1988. Leone also was found guilty of two counts of attempted murder because he shot at the two officers who arrived to assist Payne.