Crusading against a “broken” bail system, Gov. Kelly Ayotte made it an early legislative priority to overturn several of her predecessor’s reforms. A former prosecutor herself, the governor garnered support from law enforcement and county attorneys in her efforts.

Criminal defense attorneys, on the other hand, said the bail system worked just fine and predicted the new policy will lead to unnecessary incarceration and added cost.

Ayotte signed House Bill 592 into law last week, undoing bipartisan changes made in 2018 and signed into law by then-Gov. Chris Sununu. The revision aims to tighten bail restrictions against a system Ayotte says lets too many criminals out of jail and jeopardizes the safety of police and victims of crime.

“I’ve seen and I’ve heard so much about the issues we’ve had with bail creating a revolving door that is putting our law enforcement in danger, that is putting average citizens just trying to live their lives in this amazing state, in danger,” Ayotte said at a press conference last month.

Jeffrey Odland, a Manchester lawyer who heads up the state’s association of criminal defense attorneys, said the law clearly is meant to target repeat and serious offenses, but it’s difficult to predict how they’ll be applied.

For someone who’s arrested for a new offense while out on bail, the law creates a “rebuttable presumption” that that person will be detained, Odland said. A lawyer can argue against that, he said, but it’s too soon to know how judges will view it.

“Previously, there’s sort of a presumption of liberty, and this is in essence saying, if you’re already on bail and you get re-arrested, there’s a presumption of detention,” Odland said. “But, it’s a presumption that can be overcome, and we’ll have to wait and see what that means in practice.”

For defendants with no criminal history, the bail process would remain largely the same, Odland said. They can simply request to see a bail commissioner, who would determine their bail amount or if they should be detained.

The new law added several serious offenses that preclude someone from seeing a bail commissioner. For these charges – things like felonious sexual assault and domestic violence, robbery and stalking – the offender would be held without bail until they can go before a judge.

The law also expands the 24-hour window in which a judge or magistrate must handle each case up to 36 hours. Depending on timing, Odland said someone could be held for several days if no judge is available on weekends and holidays.

Mark Sisti, a criminal defense lawyer in Chichester, said state leaders have “made a big deal” out of problems to the bail system that he doesn’t see as widespread.

“It truly doesn’t really impact that much,” Sisti said. “I mean, the provisions are pretty much the same.”

In 2018, Sununu signed a bill that aimed to remove financial barriers to obtaining bail. After that, local law enforcement and prosecutors began to report an increase in people failing to appear for court, though there is no statewide data tracking that.

Ayotte’s sought to lower the standard of proof required to detain people arrested by police and allow for the automatic detainment of individuals who have previously committed certain crimes while out on bail, failed to show up for court or violated any bail conditions until their hearing.

It also repeals the newly implemented magistrate system that Sununu signed into law last year and went into effect in January.

Members of law enforcement advocated for the change alongside Ayotte and the bill’s sponsor, Weare Rep. Ross Berry. At a press conference last month, Strafford County Sheriff Kathryn Mone said the current system has “too many cracks.”

“I have spent the majority of my career believing that when I made an arrest, I was doing my part to make the communities a safer place. I then put my trust in the next step of the process, believing that the next step of the bail process was going to continue the process that law enforcement began to ensure public safety,” Mone said. “Since 2018, the bail process has been failing in its critical role in our system.”

Ayotte’s cohort relied heavily on anecdotes to support their case for bail changes, which the attorney general’s office also cited when asked by the Monitor. In 2022, a man who’d been released on bail after a “violent incident” despite prosecutors’ concerns stabbed someone to death on a walking trail, according to the attorney general’s office. And this February, another man repeatedly stabbed someone and was released on bail despite the nature of the crime and prior criminal history.

The attorney general’s office said those recent cases are just two of many examples. Sisti, on the other hand, said those incidents don’t reflect the current bail system. Americans are presumed innocent until proven guilty, he said, and stripping someone of their freedom before their trial is “an extreme act.”

“What happens is you get some extraordinary event that takes place where somebody is out on bail and they kill somebody, or there’s a terrible event, and all of a sudden that’s an overarching comment on the entire statute, which is just a misrepresentation,” Sisti said. “It, quite frankly, has nothing to do with the theme of bail itself.”

Paul Halvorsen, the Merrimack County attorney, declined an interview for this story. When asked to provide past examples where his office felt the bail system did not work properly, he said he could not comment on specific pending cases because he has an ethical obligation not to influence someone’s right to a fair trial.

The state has not employed metrics for how well the 2018 law worked or failed to work, although data from the state’s Department of Safety shows violent crime has generally declined in New Hampshire since 2018. When asked at the press conference how the state should measure the effects of bail policy, Ayotte said the victims she’s mentioned aren’t statistics.

“I can’t wait to have someone else killed waiting for more data on something that is pretty obvious,” she said.

Magistrate systemwill sunset

Three magistrates began working for the state of New Hampshire in January after Sununu signed a law that aimed to cut down on wait times for bail hearings. The idea was to augment the existing commissioner system and provide a speedier arraignment for people who are arrested on weekends or holidays. Outside of working hours, they may not be able to see a bail commissioner or judge, meaning they could be jailed for several days before a determination is made.

Ayotte’s law will repeal the magistrate structure when it goes into effect on Sept. 21.

“To say that that specific system was broken, I think, is impossible for folks to know,” said Odland. He has not yet had any case hearings with a magistrate. “There was less than a few weeks under that system before the bills were filed to repeal it.”

Odland, like others who argued against the change, said he predicts the law will cost the state more money. It will result in more bail hearings, he said, and in turn increase the demand for indigent defense.

He said detaining more people through stricter bail laws will also lead to more expenses.

“If there’s going to be a higher rate of detention, then there’s going to be knock-on costs for detaining additional people pretrial,” Odland said.

State agencies were unable to nail down the exact fiscal impact of the new law. While the Judicial Branch may save some cash on the salary and benefits of the repealed magistrate positions, it may also see increased bail commissioner fees. The costs of longer jail detentions will be passed down to the counties.

Any increases are worth it to protect the public, Ayotte said.

“What price can we put on someone who’s been murdered, raped, assaulted or when we have a Bedford police officer that gets shot by … a three-time offender and should never have been on the streets?” Ayotte said. “I would argue that cost is much bigger than the incremental cost we have of holding people to make sure that the public is safe.”

Charlotte Matherly is the statehouse reporter for the Concord Monitor and Monadnock Ledger-Transcript in partnership with Report for America. Follow her on X at @charmatherly, subscribe to her Capital Beat newsletter and send her an email at cmatherly@cmonitor.com.