Michael Lewis: Unpacking the county attorneys’ belated position on bail reform

For the Monitor
Published: 5/24/2018 12:10:08 AM

Having worked as a state homicide prosecutor for nearly six years, where my duties included one instance in which I defended the state’s bail statute as it pertained to the state’s most dangerous criminals, State v. Furgal, 161 N.H. 206 (2010), I found myself struggling to understand the position of the 10 county attorneys with regard to bail reform, as reported by this newspaper on Tuesday.

What should we make of the 10 county attorneys who suddenly awoke from dormancy at the end of the legislative session to enter the debate on bail reform? Just how much weight should we give to their belated words of “caution”?

I think the answer is: Charitably, not very much.

The timing of this newly expressed position by our 10 county prosecutors is deeply troubling.

Opportunistically, they enter the debate as purported representatives of public safety after having sat on their hands for months while other public safety officials, including the chiefs of police, worked to draft a bill that protects the public safety.

The strange timing of their entry is hard to square with the fervor of their rhetoric.

Indeed, having waited until the last hour to make a case, the group’s letter, remarkably, fails to prove their case, visiting upon us another blow to our public confidence in them.

If readers take the time to scrutinize the letter the 10 prosecutors wrote, they will be surprised by what they encounter. Absent from the letter is a citation or reference to any evidence supporting the claims the group makes. This is notable because it comes from professional prosecutors whose job it is to prove their cases with evidence, rather than emotion, hyperbole and demagoguery.

This group is not joined by the attorney general or the New Hampshire Department of Safety. That is to say, the 10 county prosecutors have entered the legislative debate over bail reform without evidence and without the support or approval of the state’s top prosecutor and public safety officials.

They take this step with substantial, recent baggage.

Our county prosecutors have been notable for the remarkable, negative attention they have garnered in the press recently. The attorney general has had to the take extraordinary step of staffing and running two county prosecution offices in recent years and, last summer, our state newspapers reported that one county prosecutor failed to superintend domestic violence prosecutions within his jurisdiction, the largest in the state.

This trend of strange and scatter-shot, negative publicity continues to undermine the standing of our prosecutors before the public and our courts.

It is only exacerbated by the irresponsible way in which county prosecutors have entered the debate about bail reform.

Consider that, even as we, as a state, are beset by an opioid crisis and the demonstrated, historic failure of our system of justice to provide services that constructively respond to addicts and the poor, the 10 county attorneys have used their platform to take shots at broad and bipartisan efforts at reform while offering no solution. None.

So what have they offered?

In two instances, they have offered bizarre and dehumanizing rhetoric, with their members deploying the phrase “catch and release” to describe fellow citizens.

Our Live Free or Die motto does not contemplate this sort of perspective from executive officials. Our state constitution is notable in how it confers dignity upon all citizens in equal measure. Under it, our citizens are not to be analogized to flora or fauna by county functionaries.

Our state constitution provides a special clause, Part I, Art. 18, redirecting government efforts inside the area of crime and punishment by placing special emphasis on the goal of reform and rejecting extermination as a lawful constitutional end.

The 10 county attorneys appear to need some updating in regard to these rights and their underlying values.

Their position on bail reform, to the extent it can be called a position, stands at great odds with those values. Thankfully, it also stands at odds with the values of the bipartisan and nonpartisan group of public officials who constructively invoked the legislative process to engage the issue of bail reform.

Whether this more considered perspective prevails will be yet another test for our democracy and its commitment to our state’s constitutional values and the rule of law.

(Michael Lewis is a Concord attorney.)

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