In the last legislative session, New Hampshire’s lawmakers amended the state’s bail statute.
They did so in response to bipartisan concerns that our system of criminal justice was warehousing our poor and sick friends; our sons, daughters, nieces, nephews; our acquaintances and contemporaries; our neighbors and workmates; men and women who we learned we were locking up without proving that we had a basis in evidence for doing so.
In addressing these matters, liberals and conservatives expressed justified distress over the law-enforcement approach of leveraging pretrial incarceration against vulnerable people to obtain guilty pleas. In a state that treasures freedom, these practices struck New Hampshire as unjust regardless of whether citizens and lawmakers were allies of the ACLU or Americans for Prosperity, two of bail reform’s prime supporters.
Our love of freedom runs deep and bridges substantial divides. So does our desire to be just.
Underlying the amendments to the bail statute was a development in our thinking on crime and punishment. Ancient in origins (see St. Thomas More), this development has been a long time in the coming. Decades of experience has made us skeptical, if not incredulous, of claims by demagogues within the criminal justice system who argue that the cudgel of incarceration, alone or even principally, can keep us safe from the costs of unaddressed drug addiction, mental illness and poverty.
In the face of mountains of evidence, law enforcement officials nevertheless still tell us we are wrong about what we have learned and the conclusions we have drawn. They claim that they are on the front lines and know better. They leverage their position and stand, cross-armed, before state officials and lawmakers in an intimidating fashion, proclaiming they are right with the sort of authority that would make anyone quake.
Beyond what they say, however, they almost never have the evidence to support their claims. If their unsubstantiated arguments reflect a general approach to restricting our liberty through chest-puffing proclamations rather than rational presentation, our confidence in their arguments about bail policy should remain on the ebb.
The generalized nature of their critiques raises even more red flags. The reforms they challenge prohibit courts from incarcerating people before trial because they are poor. These reforms also demand that courts consider the fact that a person may be a provider for a family or child before locking them up pretrial.
Even with these small, humane changes to the system, these small nods to the challenges people of all walks face that may land them in the cross-hairs of the police, the reformed system still permits courts to order a person incarcerated pending trial for traditional reasons.
A court may do so if police and prosecutors can prove that a person is a danger or will not appear in court or abide by law. Regardless of what law enforcement may claim, nothing, not a single word in the reformed statute, prevents police or prosecutors from marshalling evidence and presenting it to a court of law in order to obtain pretrial incarceration and so to keep us safe from violent, recidivist offenders.
This fact should cause you to ask the following question about the hue and cry from police and prosecutors we now read about in the papers so often: Is it the bail statute or law enforcement and our system of justice that is to blame for the extreme cases of recidivism they present to us as proof that bail reform is a threat to us?
Let me suggest something to you as someone who handled bail hearings as a prosecutor: It seems to me that if a person has skipped bail numerous times and has a history of lawlessness, a police officer or prosecutor should have little trouble making a very powerful case to a competent judge that the person should be incarcerated before trial.
Indeed, it would seem to me that police and prosecutors could even pursue separate charges for bail jumping and move full steam ahead on new, bail-related charges, raising the possibility of additional, justified punishment. They would do so in our defense and in defense of our system of laws.
So what gives? What prevents police from taking this approach? I have yet to see any credible argument that causes me to conclude that any of the failed efforts by police to protect us from recidivists have to do with bail reform. I’ve seen lots to suggest that their failures are to do with our woefully underfunded system of justice; our underpaid police departments; our undertrained prosecutors; or our understaffed judiciary, a branch that admits that it does not collect data on the subject and has no chief justice to initiate the project.
Nevertheless, as someone who worked with police, it will always remain notable to me when the Manchester Police Department registers its concerns.
Chief Carlo Capano, a very fine detective in his time, has been up in Concord monitoring the progress of the new bail commission. However, neither he nor his appointed representative on the commission appear to acknowledge that, during the first months in which the reformed bail laws have come into effect, the Hillsborough County Attorney’s Office has been in the throes of a disorganized power-struggle with the New Hampshire Department of Justice.
In that power struggle, Chief Capano has gone public in an extraordinary way, calling into question the basic competency of the Hillsborough County Attorney’s Office, the officials Chief Capano’s officers have had to rely upon to present bail matters in our courts. Under these circumstances, neither he nor his appointee to the bail commission will be able to provide reliable answers to questions regarding whether this major structural breakdown between his department, prosecutors, the state and our woefully underfunded, unsupervised courts has been the true cause of his department’s stated inability to keep Manchester safe from recidivists under our bail laws.
This is just one problem regarding claims about bail, causation and recidivism as I see them. There are more fundamental problems.
We know that our mental health care system has remained broken under Gov. Chris Sununu’s multi-year obstructionism. Gov. Sununu’s approach and his appointments give us little hope that the current administration has any idea how to respond to the public health and safety challenges we face, from opioids, to domestic violence and child abuse, to access to health care and legal assistance. All of these challenges rest at the root of the crime we see reported in our state on a daily basis.
Yet, even as Gov. Sununu’s agencies produce vast tomes of writing on the right-to-know law or the administration of charitable trusts in New Hampshire, he has failed to deliver a comprehensive memo or blueprint on how mental health and opioids should impact how we enforce our criminal laws.
On this record, even an apologist for bail retrenchment would have to concede that this casts doubt on arguments that blame bail reform for all of our troubles.
I take a very different view. On this record, I would suggest that a free people should raise a great deal of skepticism about the notion that a bail system that was reformed in minor ways is to blame for the threats law enforcement believes we now face as a result of the small amount of greater liberty bail reform provides.
I would also suggest that the debate provides yet another fundamental reason why we must all go to the polls next election, vote out those who seek to give government greater power to restrict our liberties, and demand that officials will use state resources to support rather than incarcerate the great people of this great, granite state, according to our laws.
How could we do otherwise and still look ourselves in the mirror and imagine that we are the true lovers of liberty we claim to be?
(Michael S. Lewis is a Concord attorney.)