Bail reform effort seeks to standardize pretrial risk assessment in N.H. 

A defendant charged with identical crimes in two New Hampshire counties could be deemed high-risk in one community and medium-risk in another simply because the state has no uniform tool for measuring the danger he or she poses to the public pretrial.

While some counties have adopted tried-and-true assessment tools used elsewhere, such as in Ohio, others have tried to create their own. A criminal and juvenile justice subcommittee even wondered Thursday whether a county or two may not follow a rubric at all.

“We have to look at how it’s being done, by whom and how,” said Michael McAlister, director of field services at the state’s Department of Corrections. “Is it being done at the law-enforcement level or after some judicial process?”

Getting a fuller understanding of what pretrial assessment tools are already being used, whether they are in line with New Hampshire’s statutory framework, and if they are being effectively evaluated are among the goals of the newly formed subcommittee on risk assessment. The group is a subset of the Interbranch Criminal and Juvenile Justice Council, which is exploring options for bail reform in the Granite State.

Other subcommittees on legislation, data collection, pretrial supervision, and education and training are also meeting this summer to conduct research and develop recommendations for the full council, which will meet again Sept. 17. The council is assessing bail reform initiatives, such as creating better tools for pretrial evaluation of defendants and elimination of cash bail, as part of a larger effort known as “3DaysCount.”

The Pretrial Justice Institute is spearheading the national 3DaysCount campaign, the name of which is derived from studies that show three days in jail can have detrimental effects on someone’s life that include job and housing loss. The goal of the initiative is to reform a bail system that critics say works against the poor and working class who don’t have the financial means to post cash bail.

With the launch of a new pilot program in Grafton County in May, County Attorney Lara Saffo said prosecutors in her office are the first ones charged with completing a risk assessment before the form goes to a superior court judge. The seven-question form is derived from one used in Virginia, but it has rolled out with a lot of concerns, in part, because it hasn’t been customized to work cohesively with New Hampshire’s statutes, she said.

The assessment tool was piloted first at Grafton County’s four circuit courts and, more recently, at the superior court.

“We’re handed this form and we’re asked to be a rater. For a prosecutor to be a rater of an instrument that we have concerns about is making us a little nervous,” Saffo told the subcommittee. “Virginia’s assessment got rave reviews, but their assessment is part of the entire system that we need to get in New Hampshire but we don’t have yet.”

That system includes a well-funded pretrial services program, which includes officers tasked with sitting down and meeting with defendants to more effectively evaluate their risk to themselves and to the public.

Skeptics of surging bail reform efforts in New Hampshire maintain the criminal justice system will fail everyone involved if it does not first address the glaring gap in pretrial monitoring and supervision for defendants who need it. While some counties, like Merrimack County, have their own programs, resources and funding are not available statewide.

Tuftonboro police Chief Andrew Shagoury, president of the New Hampshire Association of Chiefs of Police, reiterated during Thursday’s meeting law enforcement officers’ concerns that “without pretrial services this is not going to work very well.”

Earlier this month, Gov. Chris Sununu signed a bill aimed at preventing low-risk offenders from being held on cash bail simply because they can’t afford release from jail.

The bill, sponsored by Senator Dan Feltes, D-Concord, set the stage for new bail reform efforts in the state. During the public hearing process, it was opposed by members of law enforcement and, in the eleventh hour, by the state’s 10 county attorneys, in part, due to concerns about the lack of pretrial services for defendants.

Supreme Court Justice Tina Nadeau, who is chairwoman of the Interbranch Criminal and Juvenile Justice Council, said previously that the group will be keeping a watchful eye on how that bill works in practice and how any future reform efforts can build upon it.

While the council is seeking input from the national “3DaysCount” campaign, Nadeau said at the council’s last meeting in mid-June that “this will be a New Hampshire solution if we think we need one.”