LEWISTON — Jail reform advocates said they believe the current protocols that have reduced jail populations by roughly 40% over the past two months or so should become the new normal.

But Androscoggin County District Attorney Andrew Robinson said Friday that it’s too early to predict what effect the coronavirus pandemic will have on future policies for arrests.

Sheriff Eric Samson at his desk in the Androscoggin County Sheriff’s office in Auburn. Andree Kehn/Sun Journal

In mid-March, Androscoggin County Sheriff Eric Samson wrote a letter to the police chiefs in cities and towns in the county, as well as other law enforcement agencies, asking that they issue summonses instead of making arrests when possible.

At that time, the jail population had been close to its 160-person capacity. On Friday, fewer than 100 inmates were housed there, including nine who had been put in a two-week quarantine.

Whether the current practice continues after the pandemic wanes and whether prosecutors continue to be inclined to allow those accused of nonviolent crimes to be summonsed rather than arrested is unclear.

Auburn Deputy Police Chief Timothy Cougle said Friday that many of those cases of summonses versus arrests are left to officer discretion.

“The choice to make an arrest as opposed to issuing a summons can take into account the persons criminal history, and likelihood of the person to reoffend in the short term,” he said. “The desire and need for bail conditions to be put in place are taken into account and factored into an arrest decision.”

Arrest with bail conditions “is a tool to help law enforcement ensure that the person can more effectively be monitored and re-arrested if a violation of the conditions should occur,” he said.

Officers judge each case on its merits, he said.

“Once this pandemic has passed, our agency will look to return to our normal operations,” he said. “This will include making arrests for violent and some nonviolent crimes when it makes sense to prevent the likelihood of further criminal activity taking place in our community.”

Samson said Friday that when someone is arrested for a nonviolent offense that’s not a felony and brought to the jail, the shift supervisor will call an assistant district attorney to determine whether the suspect should be summonsed and released or bailed on their personal recognizance. That’s done at the direction of the District Attorney’s Office, he said.

Androscoggin County District Attorney Andrew Robinson Steve Collins/Sun Journal

Samson said when someone is arrested on a warrant and brought to the jail, his supervisors will call a court administrator to decide whether that person should go through the booking process.

In March, the judicial branch suspended more than 1,000 warrants for failure to pay fines or appear in court in an effort to help keep the jail populations down.

The jail might refuse to book someone into the facility because of mental or physical health reasons, Samson said. Otherwise, they are checking with the courts or prosecutors, he said.

Once the pandemic threat has passed, Samson said, “I don’t believe it’s reasonable” to have prosecutors continue to be on call day and night seven days a week to determine whether an arrestee should be summonsed instead or bailed on their personal recognizance.

Before the pandemic, they would only be called for emergency situations, such as a fatal crash, he said.

“I don’t think it’s a sensible solution,” he said. “With all the budgetary concerns, to have an expectation of a district attorney available all hours of the night,” on a permanent basis isn’t realistic, he said. “They’re doing it right now due to the pandemic. I don’t know when or how that will taper down.”

Some changes he might endorse that came about as a result of the pandemic include videoconferencing of initial court appearances and arraignments of defendants in custody. The technological advances that have allowed those procedures to take place without inmates having to leave the jail, be transported to Lewiston and appear in a courtroom have saved in transportation costs and have boosted security.

Bond said summons in lieu of arrest is a legal tool that Maine has had for a long time,” she said. “And it’s an important harm reduction strategy.”

The jail population mitigation practices in place should continue as the economy begins to reopen causing the risk of infection to increase, she said.

Tina Heather Nadeau, a Portland attorney and executive director of the Maine Association of Criminal Defense Lawyers, said her organization supports any efforts to reduce arrests and jail populations throughout the state.

“Over the course of decades, pretrial incarceration has been overused to detain those who, though presumed innocent, are too poor to post bail and yet present no sincere public safety threat if released” she said Friday.

“Over-criminalization leads to mass incarceration: efforts made in the wake of COVID-19 by police, prosecutors, and judges to reduce arrests and have bail set at more reasonable amounts — through the advocacy of defense counsel — have led to the reduction in jail populations.”

Sheriffs have generally helped bring about the early release of inmates to further reducing jail populations, she said.

“Our jails are filled with too many people who were incarcerated for far too long. The criminal legal response to COVID-19 and the lessons learned from that response should show us all a better way,” she said.

“This is important work that we will continue to pursue during and following this pandemic,” she said.