Last year, the state Legislature came together in unanimity and passed comprehensive bail reform, which ended the longstanding practice of jailing people who were awaiting trial because they were too poor to afford $100 bail. This was, and still is, a major victory for the New Hampshire criminal justice system, which has since seen a drastic decline in the number of people detained pretrial since it was enacted last September.
This year, the Legislature is taking up some additional reforms recommended by a bipartisan, multi-stakeholder commission that will further improve the new bail system. However, some complaints have increasingly inferred that the problem with bail reform is that it prevents the jailing of people pretrial who are homeless, poor, or suffer from mental illness or have a substance use disorder. Let’s be clear: Incarceration is the solution to absolutely none of those social issues.
Before bail reform, people were regularly detained for weeks or months before they ever went to trial simply because they could not afford bail – which was often set based on the charge without any consideration for the financial means of the person before the court. When jailed pre-trial, people risk losing their jobs, their housing, custody of their kids and other community supports.
The bail reform passed last year imposes a requirement that the dollar amount of bail must not result in someone’s pretrial incarceration due to an inability to pay that bail amount. The goal was to ensure that judges considered someone’s financial means when setting bail and to prevent poor people from being unfairly jailed pre-trial.
The good news is that bail reform is working. Fewer people are being detained due to an inability to pay bail, meaning that, as presumed innocent, people are able to handle their cases without being needlessly behind bars.
Some have complained that too many “dangerous” people could be let out pre-trial. However, with the enacted bail reform, prosecutors actually now, for the first time, have the ability to detain anyone pre-trial without bail by proving that they are a danger to themselves or others by clear and convincing evidence.
Previously, only those charged with a small subset of domestic violence related offenses could be held without bail. Instead, in order to detain someone dangerous, prosecutors and judges had to rely on setting a high bail and hoping that the defendant was unable to pay it. Now, prosecutors can seek to detain anyone pretrial by proving dangerousness.
Yes, prosecutors have to prove dangerousness. As a society, we should demand nothing less if the government is to deny someone their liberty before they’ve been convicted.
Bail reform calls out our country’s historical and ineffective reliance on incarceration, including jailing those with whom society is uncomfortable. For instance, recently, there have been complaints about bail reform that clearly target our homeless population: that people are being let out on zero dollars bail and then urinating in the streets and sleeping in parks. Being homeless is not a crime, and homelessness cannot be solved through incarceration.
The same goes for substance use, where some argue that people with substance use disorders are by definition a danger and should be held pretrial. If the last 50 years of the failed War on Drugs has taught us anything, it is that incarceration does not solve substance use disorders.
Our jails are ill-equipped to help people suffering from substance use disorders. Cases of people who are released pretrial and then overdose are tragedies, but they are not examples of bail reform failing. They are cases of failing social services, the realities of an opioid epidemic and a state needing to do more to respond to the medical crisis that is addiction.
We cannot incarcerate our way out of social problems. Jailing a homeless person will remove the person from the park temporarily, but it does not solve their homelessness nor the reasons for it. More importantly, it is an injustice to use our criminal justice system to hide those we are embarrassed about or uncomfortable with in our communities.
Ending mass incarceration should be a social, political and human priority. It’s a suck on taxpayer money. It’s ineffective. And it’s discriminatory, with incarceration predominantly used against the most vulnerable.
Mass incarceration has been justified for decades now by arguments of public safety and fear mongering. And yet, as a social experiment, mass incarceration has been an utter failure. New Hampshire should be proud of bail reform and should fight to ensure we continue to chip away at our country’s overreliance on incarceration.
(Jeanne Hruska is the political director at the ACLU of New Hampshire.)