When it comes to the state's new bail statute, It’s not success stories that make the headlines, says public defender David Rothstein, but instead stories of failure and repeat offenders, contributing to what he suggests is a skewed debate around bail reform.
“We don't talk about the people who are out there and released on their own recognizance, abide by their conditions, get out of jail and do well and come back to court,” Rothstein said on The Exchange.
(For the full conversation, visit here. Excerpts in story have been edited slightly for clarity.)
The new law, which has been revised once since passing in 2018, requires judges to consider what a person can reasonably afford before setting bail but also allows them to jail a person they deem to be dangerous without the opportunity for bail. The bail reform statute has been the subject of intense criticism among law enforcement.
Rochester Police Chief Paul Toussaint agrees that people should not be detained simply because they can’t afford bail. But, he says, the new statute has made his job harder -- and the public less safe.
“We arrest the same people over and over and over again for either failing to show up at court, committing additional crimes when they're out on bail. And the new system, unless you're dangerous, is basically a system that's set up to release these people and not hold them under any circumstances other than them being a danger to society.”
And Touissant argues that seemingly minor offenses, when they occur repeatedly are a form of dangerousness not adequately recognized by the new law. “It's frustrating to officers," he said. "It's frustrating to the public because they're seeing things going on in the community, and they're saying, 'Why isn't the police department doing anything about this?'”
Jeanne Hruska, political director of the ACLU-NH, which played a key role in bail reform, says the new statute has addressed serious inequities. “During a time when they're presumed innocent, people were being jailed simply because they were too poor to afford low cash bail,” she said. “Judges were setting $100, $200 bail -- not intending to incarcerate the person -- but because of their income, they wouldn't be able to pay it, and therefore were jailed for months or years.”
And that can lead to severe consequences, she said.
“They're likely to lose their job, which may mean they lose their housing. They could lose custody of their kids. A person's life can completely fall apart because they have been jailed pre-trial. And imagine a situation where charges eventually get dropped against that person. The state doesn't make you whole. They open the door and say, 'Sorry about that. Good luck'”
Hruska says public safety has been enhanced by the new law because judges -- instead of simply setting high bail in hopes that a dangerous person could not afford to pay and thereby remain in jail -- can now detain that person. “So there's a new public safety measure that never existed before that allows pretrial detention for people who are a danger to themselves or others,” she said.
Rothstein believes a number of the people who are being released repeatedly suffer from addiction. “If we had a way where we could take these people who need the services right there at court when they're released on bail and immediately link them up with services, I think everybody would be a lot better off,”he said.
Community corrections programs can help in such circumstances, but there are not enough of them in New Hampshire, Rothstein said.
These programs, including one associated with Rochester in Strafford County, are imposed as a condition of release and involve monitoring of the defendant. “Often they'll have an ankle bracelet. They'll have to check in with people. It's a way to restrict people activities without incarcerating them,” Touissant said.
"There are people that are eligible and are good candidates for community corrections. And community corrections works. The people who work in these programs, they're overworked. They they have a lot of people to supervise. They do a great job. But not everyone is a suitable candidate for community corrections."
As for defendants failing to appear in court – a common complaint among police and prosecutors -- Rothstein says: “Our statistics show there's only been a very, very slight increase in failures to appear -- about a 2 % increase in failures to appear statewide since the new bail statute has come into effect, so it’s negligible.”
Sullivan county attorney Marc Hathaway, a critic of the new bail statute, says he’s seen hundreds of cases of people simply not showing up for trial and disputes the 2% increase as a “myth.” Data, so far, has been hard to come by, and many involved in the system seem to agree there’s a need for more of it.
Hathaway meanwhile, though he says addiction itself if not a crime, considers it a principal driver of criminal behavior, such as possession and sale of a controlled drug. And, he says: “Society should be able to expect people who are out on bail to behave. And when they don’t, there ought to be a rebuttable presumption that that individual should be removed from the community pending the resolution of his or her trial.”
Hathaway also defended bail commissioners, who have come under criticism for their role in the system. “Bail commissioners are, in fact, agents of the court. They’re appointed by the court. They act on behalf of the court, and they’re trained by the court. The idea that bail commissioners are some remote, faraway, disinterested people who are screwing it up is wrong.”
A 15-member bail commission met for the first time last week to consider complaints about the new law and possible remedies. The commission will continue to meet and consider improvements that may be pursued through legislation.