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New Hampshire Courts Launch Bail Reform Initiative

N.H. Superior Court

New Hampshire's judicial branch announced today that it’s going to be taking a serious look at bail reform.

To avoid incarcerating people for too long simply because they can’t afford bail, court officials will begin working with the Pretrial Justice Institute to find ways to improve bail practices.

All Things Considered host Peter Biello spoke with New Hampshire Superior Court Chief Justice Tina Nadeau about the initiative.

The announcement today refers to common-sense reforms in the pretrial system. That term—pretrial--is that referring to bail or is there a broader array of things you’ll be looking at?

Generally, that refers to our bail practices, but I know there are some counties that also have pretrial release services. So in lieu of someone being on bail, a defendant would be released to the pretrial service program and monitored and supervised. We may be looking at how we can assist those counties if they wanted to improve their practices. I know that having a state-wide pretrial service program is a broad undertaking and not something we’re necessarily looking at at this stage.

Why is this effort needed?

I think that no matter how hard we try to make sure we are issuing bail orders and holding people pretrial based on their risk of flight and dangerous, some people are being held on very low cash bail orders and simply because they don’t have the means to pay it are staying in jail pending their trial. When you compare that to someone else with the same charge who has the means to post bail, and is released waiting for trial, we need to make sure we are taking a look at that. Some of the national studies show that a large percent of defendants can be released pretrial without an increase in crime and without the risk of flight. We want to make sure we are getting as much as we can out of the pretrial system. It costs a lot of money to keep someone in jail pretrial and it also affects their lives so that they are more likely to offend later if they spending pretrial days in jail.

Have you heard of or can you recall a particular case where you thought: wow, the system is really broken and needs to be fixed in a serious way. 

Credit Paige Sutherland / NHPR
Chief Justice Tina L. Nadeau, speaking about the judiciary, in Manchester in 2015.

It’s hard to think of a specific case, but I do look at lists from superintendents—they send me their jail lists from time to time—so I can see who is being held on, for example, 500 dollars or less and what their charges are. Are they nonviolent offenders and why are they being held on such a low amount of bail instead of being released on their own personal recognizance. I want a way of looking at that data and analyzing our cases to see if we should be making some changes to ensure that people aren’t staying in jail simply because they can’t afford their bail.

What is this organization, the Pretrial Justice Institute, and how did you come to the decision to partner with it?

They are a national group, non-profit group, and they’ve been in place for over 40 years working on pretrial justice initiatives across the country, so they have a really knowledge of background and expertise. They basically made an announcement in every state about their 3Days Count project, which is encouraging states in applying for free technical assistance in looking at their bail system. What I think if great about New Hampshire, because we have such a small state, we have a group of stakeholders on a legislatively created committee—including the executive branch, judicial branch, and legislative branch—and a member of that group found out about this initiative and brought it to the attention of this council, and we all voted on whether or not we should complete an assessment and if it would be a good idea. It was a real collaborative approach, and that was how the decision was made.

So you’ll be coming up with an assessment? Is that what you called it?

Right, so what we will be doing today, we have a meeting at 1:30 where the Pretrial Institute will be giving a detailed presentation to our council on what is going on nationwide, what are the statistics on pretrial detention, how does it affect our criminal justice system, how does it affect safety. We will get all of that information today, and with their help we will come up with what do we want to do in our state. Every state is different, some states want to take on larger initiatives, some states want to do smaller initiatives, so we are going to get together and see what we think we need to do after taking a look at our pretrial detention system as it stands.

Do you think these are going to result in really dramatic changes or just tweaks?

I’m not sure about that yet. I always like to think we should shoot as far as we can and see how much agreement we can get for the biggest bang for the taxpayer dollar, and go from there.  

The assessment, will that include recommendations that the legislature will have to take up, or are there other ways to implement what they might recommend?

There are all kinds of ways to go forward. It can involve legislative change or it can simply be practice change. Right now, I know there is a bill in the legislature that is sponsored by Senator Dan Feltes by a bipartisan group of cosponsors that is setting the stage for some bail reform in our state already, so we will probably take a look at that and how that is going to be working if it passes, and see what is happening on across the state in bail practice. I think everything’s on the table, and we’ll take collaboration and agreement to decide what are approach is going to be in the end.

How long do you think it’ll be until the assessment is made public?

I’m not sure about that, that is something we are going to look at today and I will bring up with the Pretrial Institute Justice folks. I am hoping within the next year we will have a good sense on where we will be.

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