N.H. bail commission hopes to continue its work post November

Monitor staff
Published: 11/3/2018 11:43:49 PM

Criminal defendants free on bail could one day be notified of their upcoming court hearings in a text message from the New Hampshire court system.

The state has piloted a text messaging program in divorce and parenting cases that could be expanded to all criminal cases at a cost of less than $15,000 to the judicial branch, plus the addition of a part-time or full-time coordinator, according to Rochester Family Court Judge Susan Ashley.

Implementation of such a program has been part of broader conversations in recent weeks among lawmakers, law enforcement officers, attorneys and judges who make up a 13-member commission established by the state’s new bail reform law. The law calls for defendants to be released pretrial unless they pose a danger to themselves or to the community. Furthermore, it prohibits judges from detaining defendants solely because they failed to appear or have a history of noncompliance, which is in stark contrast to the old system that would allow for detention on cash bail.

The commission, which met for the first time in mid-September, is charged with providing the Legislature and the governor with recommendations on statewide pretrial services, risk assessment tools, data collection and more – all while gathering public input on the topics in advance of 2019-21 biennial state budget discussions. However, members of the commission recognized at their fourth meeting last week that their work is far from over, and that it doesn’t make sense for the group to disband in November, as the law states.

If it receives the backing of the Legislature, the commission will continue its work until at least June 30, 2020. Members voted unanimously on Oct. 29 in support of that extension and agreed to the release of an interim report Nov. 1, 2019, as well as adding a county prosecutor to the commission, which is composed of representatives from the public defender’s office, attorney general’s office, police chief’s association, American Civil Liberties Union of New Hampshire, the court system and several lawmakers. The governor’s appointment of one member of the public with experience in law enforcement is unfilled to date.

While law enforcement officials and prosecutors have expressed early concerns about issues with the new bail reform law, commission members agreed it is too soon to draw conclusions eight weeks after implementation, especially when it restructured a decades-old system everyone had grown accustomed to in practice.

One of the commission’s main areas of purview – data collection – is proving difficult to achieve even though the law is already in effect.

Generally, the state lacks data on recidivism rates, defendants’ failure to appear or pretrial bail amounts.

While the courts have a case management system, it is not a data collection system. 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.

Members acknowledged they were not going to complete their report to the Legislature by Nov. 1 as required by statute. The nine members of the commission present voted in support of a text messaging reminder system for criminal cases, but several other recommendations were not fully vetted before the two-hour meeting concluded. Sen. Dan Feltes, D-Concord, who is commission chairman, continued the meeting for two weeks, until after the midterm elections.

Anecdotally, some feedback on the law is already coming in, but solid numbers remain hard to acquire.

“The number of people detained has plummeted for the month or two its been in effect,” Judge Edwin Kelly told other members of the commission.

But the impact of more defendants being released pretrial remains to be seen.

Moving forward, he recommended that officials focus on the number of people released on personal recognizance who then re-offend.

“I think that’s a real issue,” he said.

Tuftonboro police Chief Andrew Shagoury, who also serves as the president of the New Hampshire Association of Chiefs of Police, proposed that anyone with three or more failures to appear for court should not qualify for release without a formal hearing to establish good cause. While members of the commission agreed that the topic is an important one for further discussion in the months ahead, they did not support immediate action on it, voting down Shagoury’s recommendation in a 6-3 voice vote.

Shagoury also asked the commission to consider a recommendation to the full Legislature for statewide pretrial services available to defendants in every county. Pretrial services programs monitor defendants to ensure their compliance with court-ordered conditions in an effort to reduce the likelihood they will fail to appear or be arrested on new offenses.

“I think it’s a problem if someone is precluded just because of where they live,” he said. “It’s not fair.”

Approximately half of the state’s 10 counties provide eligible defendants with pretrial services, but there is little consistency between programs and not all of them collect the same types of data that would allow for a comparative assessment.

Members of the commission recognized the inequity in resources but agreed that the group needed more time to research and discuss the issue before making a concrete recommendation.

“I think it’s premature to make a recommendation on it,” said Randy Hawkes, executive director of N.H. Public Defender Program. “Statewide pretrial services is ill-defined; there are no rules or guidelines.”

The commission is next scheduled to meet Nov. 13 at noon at the Legislative Office Building in Concord.

(Alyssa Dandrea can be reached at 369-3319, adandrea@cmonitor.com or on Twitter @_ADandrea.)

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