Opinion: Bipartisan bail reform in NH

Concord NH State House

Concord NH State House


Published: 11-22-2023 6:00 AM

Rep. Linda Harriott-Gathright (D-Nashua) and Rep. David Meuse (D-Portsmouth) serve as ranking and deputy ranking member on the House Criminal Justice and Public Safety Committee.

In recent years, New Hampshire’s legislature undertook a significant reform of our bail statute, aiming to safeguard the civil liberties of Granite Staters and curtail the unnecessary incarceration of individuals who pose no threat to themselves or others. Prior to these reforms, many non-dangerous individuals found themselves behind bars simply because they couldn’t afford bail, resulting in the criminalization of poverty. This pre-trial detention led to potential job loss, childcare challenges, and housing instability for those yet to be convicted, often fostering a cycle of re-offense and re-incarceration.

Recognizing this systemic injustice nearly a decade ago, the legislature worked tirelessly to rectify it. Subsequently, New Hampshire saw an almost 20% decrease in crime rates, accompanied by fewer instances of individuals losing their employment, childcare, or homes due to unjust pretrial detention.

However, challenges persist. Insufficient training for bail commissioners and judges, a lack of real-time access to bail status data for law enforcement, and misunderstandings about the bail law have allowed a small number of accused individuals to be released on personal recognizance bail who should not have been, even in cases involving violent crimes. Concurrently, issues like homelessness, mental health struggles, and substance abuse contribute to a cycle of arrest, release on bail, and re-arrest. While several counties in New Hampshire have added pre-trial programs to try to break the cycle, others offer none.

Recognizing the imperfections, the House Criminal Justice and Public Safety Committee, in a bipartisan effort, committed to addressing legislative issues without abandoning progress in decriminalizing poverty. Throughout the summer and fall, Democrats and Republicans reviewed testimony from dozens of stakeholders, including law enforcement, public defenders, bail commissioners, criminal defense attorneys, prosecutors, and constitutional advocates like the ACLU, to come to a framework for a compromise package of bills that received unanimous committee support.

The proposed framework addresses public safety concerns raised by law enforcement and goes beyond by tackling communication gaps between police and courts, enhancing training and compensation for bail commissioners, and ensuring victim safety. Key components include funding to connect court and police databases, limitations on bail commissioner authority for specific felony crimes, and the establishment of chief magistrate positions for better oversight.

To address concerns about training, resources, and compensation, the package mandates specific felony crimes where bail commissioners will lack authority to set bail, instead requiring review by a judge or magistrate judge. It also funds the creation of magistrate positions for better supervision of bail commissioners and to conduct bail hearings within 24 hours on weekends for the most serious crimes.

The proposed changes prioritize both public safety and civil liberties, with a maximum pre-trial detention period set at 24 hours for all crimes, unless pending appeal by a county attorney. The package does allow for pre-trial detention of a person arrested on a felony charge while out on bail until a hearing can take place before a judge or magistrate.

Additionally, the bail commissioner fee will increase from $40 to $50. This is to compensate them more fairly in the absence of allowing them to collect for mileage and be reimbursed for tech expenses. To ensure bail commissioners are paid their fee, the court will pay commissioners and collect the fee amount from defendants with the ability to pay.

Importantly for victims, the package mandates electronic monitoring for domestic violence cases or any case with a protective order, with costs reimbursed by non-indigent defendants upon conviction. Violations of protective orders become non-bailable, requiring a judge’s review.

This bipartisan effort acknowledges and addresses the challenges faced by law enforcement, victims, and the court system while safeguarding civil liberties. It exemplifies the potential for substantive change when lawmakers collaborate to understand root causes beyond partisan divides. While differences may always persist, the committee’s dedication to finding genuine solutions to issues within the state’s bail system is commendable.

Special recognition is due to Criminal Justice and Public Safety Committee Chairman Terry Roy and Vice Chairman Jennifer Rhodes for their dedication to listening to the public, consulting multiple stakeholders, and putting in the hard work required for meaningful solutions. House Democrats are proud to be able to support a bipartisan bail package in January when the legislature meets again.