Lawmakers are at odds over bail reform


New Hampshire Bulletin 

Published: 06-27-2023 6:31 PM

On a recent Saturday evening, the Manchester Police Department arrested a man they say waved a box cutter at a Dollar Tree employee during a shoplifting attempt. The man, Scott Titus, had recently been released on bail, the department said. He was charged with robbery and violating his bail. 

Last week, that example made its way into a roomful of lawmakers during tense negotiations over the future of New Hampshire’s bail laws. 

Sen. Donna Soucy, a Manchester Democrat, said the June 17 arrest was an example of the problems with the 2018 bail reform law, the sweeping effort intended to reduce the number of people held in jail while awaiting a trial.

Soucy and two Republican senators, Senate President Jeb Bradley and Senate Majority Leader Sharon Carson, were facing off against a panel of House negotiators and attempting to argue that the bail reform law should be pared back. The Senate had taken an unrelated bill to expand access to medical marijuana for pain patients and added an amendment to tighten bail laws, and now House negotiators were trying to convince them to remove it. 

The Dollar Tree example is one of many that police departments have touted to voice frustrations with the new bail law, which they argue makes it too difficult to hold people they consider dangerous behind bars. Civil rights advocates, including the American Civil Liberties Union of New Hampshire, have rejected those arguments, pointing to a relative drop in violent crime rates, and arguing the departments and bail commissioners already have the tools to hold dangerous offenders. 

But last week, when Soucy, Carson, and Bradley pushed for an effort to limit bail options for people charged with violent offenses, House lawmakers were not impressed. 

“Someone could be charged with domestic assault for a simple bump and be held 36 hours,” said Rep. Terry Roy, a Deerfield Republican and the chairman of the House Criminal Justice and Public Safety Committee. “Someone could be charged for a sexual assault that was 10 years old and be arrested and held 36 hours. In that time frame, there’s a very good possibility that they could lose their job.” 

House representatives of both parties said the Senate amendment was added at the last minute and needed further study. The senators refused to remove it, and the underlying bill crumbled.

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Now, House lawmakers have promised to take a comprehensive look at bail reform over the summer and fall, after retaining five bills that would add new limits. The discussion will be complicated; past efforts to pare back bail reform have failed to gain traction.

Here are the main debates to watch this summer. 

Should people charged with violent crimes be held without bail?

As more ambitious attempts to roll back the 2018 bail reform law have failed to gain traction, New Hampshire senators have pared back their ambitions. Recently, they’ve focused on targeting violent crimes.

In legislation submitted in recent years, Bradley and others have proposed carving out 13 crimes and creating a separate process for those who are charged with them.

Under Bradley’s proposal, anyone charged with homicide, first-degree assault, second-degree assault, felonious sexual assault, aggravated felonious sexual assault, domestic violence, kidnapping, stalking, or possession or distribution of child sexual abuse imagery would be automatically held in jail upon arrest until they could see a judge for their arraignment. That could mean up to 36 hours if they were arrested in the beginning of the week, or up to three days if arrested just ahead of the weekend. People arrested for those crimes would skip seeing bail commissioners and would instead wait to be arraigned by the judge. 

Currently, bail commissioners can deny personal recognizance bail to anyone charged with those crimes – or any crime – but only if there is “clear and convincing” evidence that releasing the accused person could pose a safety risk to themselves or the community. 

Bradley and others say that standard is too strict, and has resulted in too many people being released on bail who later reoffend. Preventing immediate bail before an arraignment for violent offenses would reduce that, he argues.

But others see the potential for abuse – and mistakes. By not providing flexibility to bail commissioners, the change would mean automatic jail time of some period for anyone accused of the crimes, even if innocent. That could mean the accused misses work and loses their job before having the chance to mount a defense, opponents have argued. And some say the new law would burden county jail systems, in which most defendants are held before their arraignments. 

In an analysis for the Legislature, the New Hampshire judicial branch reported that 5,312 people are arrested each year for one of the serious offenses listed in Bradley’s proposal.

Who should set bail: judges, commissioners or magistrates?

For years, New Hampshire has let bail commissioners determine whether a person can be released immediately after their arrest. The commissioners work in a quasi-volunteer status, earning $40 for each defendant they process, and can choose when they work. Because arrests happen at all times of the night, the ability for a person under arrest to be released on personal recognizance bail is determined by the availability of a willing bail commissioner at that time. 

Some Democrats have proposed legislation to replace bail commissioners with “magistrates,” who would be full-time employees of the court system and have additional training. Supporters say that system could take the strain off judges while not relying on voluntary bail commissioners. 

Some Republicans, meanwhile, are proposing that the state move in the opposite direction. Rep. Bob Lynn, a Windham Republican and a former chief justice of the New Hampshire Supreme Court, filed a bill this year that would eliminate bail commissioners without replacing them, and instead require that judges determine every arrested person’s bail upon arraignment. 

Lynn’s bill was retained by the House Criminal Justice and Public Safety Committee and will be discussed over the summer; the Democratic proposal to create magistrates was killed. 

How should people be penalized for violating the terms of their bail?

Some efforts to change the bail reform law have centered on defendants who are released on bail and are then arrested for something else. 

Currently, New Hampshire’s bail law says that if a person is arrested for a felony, class A misdemeanor, or for driving while impaired – and that person was already out on bail for a different charge – a bail commissioner can make a presumption that the person should not be released. One bill being considered by House lawmakers this summer, Senate Bill 249, would make that determination mandatory: Bail commissioners would have no choice but to order the person held without bail if they had reoffended. 

Other efforts target a defendant’s failure to appear in court. Under the present law, if a person has failed to appear in court for a felony, class A misdemeanor, or DUI three or more times in the past five years, there is a “rebuttable presumption” that a bail commissioner or judge can use to deny their release. Some bills being considered would strengthen that. House Bill 38 would require that a defendant show “clear and convincing evidence” that they will appear in court for their present charges in order to rebut that presumption.