Our Turn: Bail reform is preventing the criminalization of poverty; let’s not undo these changes

Published: 10/27/2019 7:00:19 AM

Last year, New Hampshire took another major step toward ending the practice of incarcerating individuals simply because they cannot afford to post bail while awaiting trial.

Thanks to the efforts of a bipartisan group of lawmakers, Gov. Chris Sununu signed into law a bill that reformed the existing bail system by requiring judges to consider an individual’s income and ability to pay when setting bail for low-risk individuals.

The change was a win for due process, individual rights, taxpayers and public safety.

Unfortunately, barely a year after first being enacted, several policymakers are already saying it is time to roll back these important reforms even after incorporating changes recommended by prosecutors and judges.

Much of the narrative right now is being driven by anecdotes, embellished by the publishing of individuals’ unflattering mugshots. What is not being told right now are the stories of all the people who are being released pretrial, going about their lives, and showing up to court. The people who are now able to maintain their jobs, continue to care for their kids, and pay their bills because they are not spending months in jail awaiting their trial. (Or the taxpayer money being saved by our counties no longer paying to jail these folks for months on end pre-trial.)

Releasing people pre-trial in no way excuses them from accountability. The issue of bail relates exclusively to where someone will spend their time in the months leading up to their trial or until their case is resolved. Will they spend that time, during which they are presumed innocent under the N.H. and U.S. constitutions, in a jail cell, at the cost of $150 a day paid for by the county, or will they spend it at home?

Before bail reform, the answer to this question depended on one’s wealth, or lack thereof. Those who could afford bail, would spend those months before trial in their community, carrying on with their lives, regardless of whether they were a danger to public safety or a flight risk. Those who couldn’t afford bail, even $100 bail, spent that same time in jail. This wealth-based distinction was unfair and unjust. We should base pre-trial detention policies on risk, not ability to pay, and that is exactly what bail reform helps achieve.

It is critical to note that people who are released pre-trial are not getting away “scot free.” They will still be held accountable for the charges against them, either at trial or via plea bargain, or their case will be dropped by the state for an array of reasons. Those claiming that people are no longer being held accountable because of bail reform are wrong, plain and simple.

Bail reform is working. But like with any system, there are steps that we can take to improve it. This includes devoting additional resources to train prosecutors and bail commissioners so that they are better able to assess whether a defendant poses a threat to themselves or to others when making pretrial recommendations. Judges and bail commissioners should know that the bail reforms enacted last year do not handcuff them in any way. Instead, bail reform strengthens their hand so that they are better able to decide who truly poses a threat to society by considering any and all factors related to dangerousness.

We support other efforts looking at how to improve bail reform, including through the bail commission that was established by the legislation. Like any comprehensive reform, we should review its implementation and constantly strive to make it better. But, the last thing any of us should want is to return to a system that allows the well-off to get out of jail while incarcerating pretrial those who have few resources but pose no threat.

Public safety and protecting individual rights are not mutually exclusive. Granite Staters should resist efforts to return to a two-tiered criminal justice system that criminalizes poverty.

(Jeanne Hruska is political director of the New Hampshire chapter of the American Civil Liberties Union. Brinck Slattery is grassroots engagement director of Americans for Prosperity-New Hampshire and a Manchester resident.)


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