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N.H. law enforcement complain of missed court dates in wake of bail reform law

  • The door to a women's housing unit is seen at the Strafford County Jail in Dover on April 17, 2017. (ELIZABETH FRANTZ / Monitor staff) Elizabeth Frantz

Monitor staff
Published: 11/30/2018 3:46:53 PM

The New Hampshire Association of Chiefs of Police is drafting legislation to address what it believes are critical holes in the state’s new bail reform law, which has had a rough rollout in the courts since taking effect three months ago.

“There are tweaks that need to be made before someone gets hurt,” said Tuftonboro Police Chief Andrew Shagoury, who served his last day Friday as president of the chief’s association. “There is this ‘wait-and-see’ mentality and that’s not the right approach. You don’t wait for someone to get hurt or wait and see how many people get hurt before you do something.”

The seeds for the legislation took root in recent weeks as a 13-member commission, composed of lawmakers, police officers, attorneys and judges, tackled issues related to pretrial services, data collection and risk assessment tools aimed at determining a defendants’ risk to the community. During those discussions, the commission’s two law enforcement representatives saw several of their ideas to amend the new bail law rejected, despite a general consensus among the group that the law, in practice, is not being uniformly interpreted by the courts.

Law enforcement officials, county prosecutors and victim advocates are speaking up about early warning signs they say could spiral into greater public safety concerns should there be no legislative intervention.

Of top concern for the association are the defendants with repeated failures to appear who judges keep releasing back into the community, believing the new bail law ties their hands, Shagoury said. While some judges give weight to court absences in considering one’s dangerousness, others discard the defendant’s record on the notion that failing to appear is not a factor when weighing whether someone is a harm to themselves or the public at large. The bail statute, which provides for the majority of offenders to be released on personal recognizance, does not provide explicit guidance on failing to appear for court dates.

But Shagoury hopes that’ll soon change. He said there should be a presumption that any defendant with three or more prior failures to appear should not qualify for release without a formal hearing to establish good cause.

Earlier this month, the commission submitted to Gov. Chris Sununu eight recommendations, but Shagoury’s proposal on failures to appear didn’t make the list after failing in a 6-3 vote during a late-October meeting.

University of New Hampshire School of Law professor Albert “Buzz” Scherr, who represents New Hampshire’s American Civil Liberties Union on the commission, said the group does not have the data to back up anecdotal claims made by law enforcement that the bail reform law has led to more failures to appear or aggravated a preexisting problem.

“In a year, we will look at the data and see what the nature of the problem is,” Scherr said. “It’s one thing if people are failing to appear for speeding tickets; it’s another thing if they’re failing to appear for felonies.”

Acquiring data has been a significant challenge for the commission. While the courts have a case management system, it is not a data collection system. In light of the new law, court officials are taking steps to track certain data sets, but gaps will still remain. The commission agreed that “to the extent practicable” the state court system and county jails should track the impact of the law to help inform efforts moving forward.

During public hearings, county attorneys and law enforcement raised concern about the effect of the bail reform law on crime victims, specifically those who could be called to testify on the issue of dangerousness. The commission ultimately recommended to Sununu and the full Legislature that there be “a rebuttable presumption that an alleged victim of a crime shall not be required to testify at a bail hearing.”

However, the language leaves open the possibility that in the rarest of circumstances a victim could be called to the witness stand.

“While some people might look at ‘rebuttable presumption’ as protection for victims, the truth is no victim should ever have to testify,” said Grafton County Attorney Lara Saffo by phone Friday.

Saffo, who is stepping down Jan. 1 after opting not to seek re-election, said she will continue to support the efforts of the chief’s association and prosecutors to strengthen the language of the law to protect all victims.

A Nov. 16 report of the commission initially had Saffo as co-authoring the “rebuttable presumption” proposal, which she did not put forward. The error was since rectified in an amended report, dated Nov. 26 and submitted to the governor.

(Alyssa Dandrea can be reached at 369-3319 or at

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