A disparity in services for pretrial defendants, the absence of a statewide risk assessment tool and heightened concerns about defendants failing to appear for scheduled court dates are among the issues a new commission began tackling Monday on the heels of implementing a sweeping bail reform law in New Hampshire.
The 13-member commission – which is established by the new law – met for the first time to set its priorities for this fall, knowing that its findings and recommendations are due in a report to House and Senate leadership, as well as Gov. Chris Sununu on Nov. 1. The commission’s report will likely be influenced by the ongoing work of a related although preexisting council, whose members met throughout the summer to better understand what the Granite State has to offer pretrial defendants, what challenges exist in collecting bail data, what risk assessment tools used in other states could be adopted in New Hampshire, and what the legislative priorities are moving forward.
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.
“It depends on where you live as to whether you get the services,” said Tuftonboro Police Chief Andrew Shagoury, who also serves as the president of the New Hampshire Association of Chiefs of Police. “You may be held because you just don’t live in the right area.”
The new bail reform law tasks the commission with developing a proposal for pretrial services in the state, as well as a corresponding funding request in advance of the 2019-21 state biennial operating budget. Members of the criminal justice community, including judges, attorneys and police officers, have pushed for a uniform statewide program, especially in light of the new bail law, which calls for defendants to be released pretrial unless they pose a danger to themselves or the community.
Both Shagoury and Associate Attorney General James Vara told fellow members of the commission Monday that in the two weeks since the bail reform law took effect, they’ve already heard concerns about the rollout, particularly because judges and bail commissioners are making decisions based on varied interpretations of the law. Shagoury added that the initial bail hearings are becoming more like probable cause hearings with testimony from witnesses, including in some cases from domestic violence victims who wanted to be in attendance but never planned to take the stand.
Although the new bail reform law took effect Aug. 31, many of the tools and trainings needed to execute it were not yet in place. Bail commissioners have received only part of their required training, and the courts still don’t have a standardized risk assessment tool to help judges figure out who is too dangerous to release.
Getting a fuller understanding of existing pretrial assessment tools was one of the charges of a subcommittee of the Interbranch Criminal and Juvenile Justice Council, which is established by statute and is exploring options for bail reform in New Hampshire. The risk assessment subcommittee was one of a handful that met over the summer to research bail reform initiatives, and they will soon be sharing what they learned with the new commission.
Members of the commission – many of whom also serve on the council – agreed Monday that it will be key for the two groups to confer so that the commission isn’t starting from scratch on issues that overlap both groups. Superior Court Chief Justice Tina Nadeau, who is chairman of the council, volunteered Monday to present to the commission in mid-October. Public comment will also be accepted at that time.
University of New Hampshire Professor Albert “Buzz” Scherr, who is a commission appointee of the American Civil Liberties Union of New Hampshire, said moving forward data collection will be key.
”I don’t think we should make our decisions based on stories,” Scherr said, noting that he is concerned criminal justice reform policies are too often based on anecdotes and not hard numbers.
However, one of the challenges is that the state court’s case management system is not a data collection system, Nadeau said. While the court is taking steps to track bail-specific data with the implementation of the new law, there will be no preexisting data to compare it to, leaving a void as lawmakers and others try to evaluate the effectiveness of the legislation.
Sen. Dan Feltes, D-Concord, the bail reform bill’s prime sponsor, was elected chairman of the new commission Monday. He tentatively scheduled two three-hour hearings on Oct. 19 and 22 during which the commission can garner input to draft its report, due Nov. 1.