In 2018, a diverse group of stakeholders, including judges, law enforcement, prosecutors, legislators, civil rights advocates and jail superintendents, came together to form a Commission on Pretrial Detention.

The commission developed recommendations for reforming our state’s pretrial system that carefully balanced the need to protect individual liberty while ensuring the safety of our communities.

Many of the commission’s recommendations are now law, which has drastically reduced the number of people needlessly incarcerated in New Hampshire. Prior to these reforms, on any given night thousands of Granite Staters were incarcerated even though they posed no danger to their community and were still considered innocent in the eyes of the law. Many were incarcerated simply because they could not afford their bail.

It’s not every day that the ACLU and Americans for Prosperity come together on an issue. However, we agree that our state should not undo the progress we have made towards improving our pretrial system.

When the New Hampshire House reconvenes on Jan. 5, they will consider SB 92, which would result in the needless incarceration of thousands of Granite Staters at a staggering financial cost to taxpayers.

SB 92 would mandate the incarceration of certain people before charges are even formally filed against them by a prosecutor. This restriction on their liberty will not be based on any finding of actual guilt or danger to the community but instead only unsubstantiated allegations they committed one of 13 arbitrarily selected offenses.

In addition, the legislation would force judges to incarcerate someone pretrial if they have failed to appear for their court date in the past, regardless of whether such failure was intentional or unintentional (e.g. lack of transportation, child care responsibilities or work requirements).

Despite the fear-based rhetoric of those pushing SB 92, it will not make our communities safer. Crime rates in New Hampshire have substantially decreased since the implementation of bail reform in 2018. Current law already allows a judge to detain any individual pre-trial if they are a flight risk or danger to the community.

SB 92 will do nothing to give law enforcement officers or judges more tools but it will tie their hands to do the right thing for our communities without any evidence that an individual poses a threat to our communities. This legislation goes so far as to mandate the incarceration of innocent people for certain misdemeanor offenses that don’t even carry jail time if there are convicted.

This legislation would also impose an unnecessary financial burden on New Hampshire taxpayers. Our courts would need an additional $3 million each year to implement this law, including hiring additional judges and support staff. And that does not include the unknown incarceration expenses that local communities would incur to jail potentially thousands of additional people each year at a cost ranging between $105 and $125 a day per person. This is an unjustifiable waste of Granite Staters’ tax dollars.

Unlike the reforms adopted in 2018, this legislation is based on fear, not evidence. Despite the rhetoric and anecdotal stories from some proponents of this legislation, they have provided no data or evidence to support their claims that these reforms will make New Hampshire a safer place. We cannot allow fear-based rhetoric rather than real evidence to dictate public policy when the freedom of potentially thousands of Granite Staters is at risk.

To make matters worse, this legislation flips the bedrock American principle of innocent until proven guilty on its head. This legislation in effect presumes guilt by mandating the detention of individuals based merely on the offense they were charged with, which we know in New Hampshire is sometimes arbitrarily determined and later reduced after the prosecutor reviews the case file.

To deny the liberty of someone who is presumed innocent, the evidentiary standard should be high and the burden of meeting it should be on the government. This legislation fails to meet this basic test.

Pre-trial detention has a devastating human toll. The consequences of being jailed while awaiting trial can be devastating. Pretrial detention, even for a short period, increases the likelihood of innocent people pleading guilty to a crime, loss of employment, income, and housing and traumatic family disruption. This legislation would subject potentially thousands of Granite Staters to these devastating collateral harms.

New Hampshire should avoid this misguided one-size-fits-all approach. Under current law, prosecutors can seek the pretrial detention of anyone they believe is a danger to our communities. This approach works. New Hampshire should keep pretrial decisions in the hands of judges who we trust with significantly more complicated decisions each day.

(Ross Connolly is deputy state director at Americans for Prosperity – New Hampshire. Frank Knaack is policy director at the ACLU of New Hampshire.)