As Debate Over N.H.'s Bail Reform Continues, Hard Data Is Still Hard To Come By

Oct 19, 2019

Credit Emily Corwin / NHPR

Law enforcement and civil liberties groups have been debating changes to New Hampshire’s bail system for months. Now, a group tasked with studying the issue says any changes should wait until more information is available about the actual impact of a recent round of reforms to the system.

The statewide bail commission, which is made up of stakeholders involved in the criminal justice system, convened on Friday. It will review the state’s new bail statute for the next year and make recommendations to the Legislature on ways to improve it.

Under the current law, judges and bail commissioners are required to consider what a person could reasonably afford before setting his or her bail. This is so defendants aren’t held in jail before trial simply because they’re too poor to afford bail.

Police have openly expressed their frustration with recent reforms since they took effect over a year ago. Chiefs across the state say their officers are now arresting the same people over and over after they are released on personal recognizance bail.

“Certainly in Manchester, it appears we’re operating a catch-and-release program,” said Manchester police officer Timothy Patterson, who represents the New Hampshire Police Association on the commission.

But advocates for bail reform say the problem is that the law hasn’t been implemented correctly. 

Judges and bail commissioners can still hold defendants on cash bail or with no bail. In fact, a defendant can be held without bail no matter the alleged crime, as long as they are determined to be dangerous. Before bail reform, judges would often post high bail amounts in the hope that a dangerous person wouldn’t be able to pay it.

New Hampshire Supreme Court Chief Justice Tina Nadeau says there are some drafting issues with the statute that has caused judges to interpret sections differently.

“I do think there is some struggle with what is dangerous and how are we interpreting that,” Nadeau said.

Some commission members suggested more training for judges and bail commissioners, especially on determining dangerousness.

Some correctional facilities, like Valley Street Jail in Manchester, have seen a decrease in jail populations since bail reform went into effect. In those jails, fewer people are held before trial.

But according to Rockingham County Corrections Superintendent Stephen Church, the opposite trend is taking hold in his part of the state.

 “Historically, three quarters and above of my inmate population have been pretrial defendants, not convicted offenders,” Church said.

And since bail reform went into effect, that number of defendants held pretrial in his jail has increased. Now, they’re being held without bail.

 Church says this leads him to believe bail commissioners are the ones who are letting defendants go multiple times, not judges.

“I believe it is before those [defendants] are getting in front of a judge,” Church said.

Circuit Court Administrative Judge David King says he feels bail commissioners need more support.

Bail commissioners are not employed by a state agency. Instead, they charge each defendant a fee of $40 per case.

But according to King, recent changes to bail reform earlier this year included a provision that if someone is poor, they don’t have to pay that bail commissioner fee. He says bail commissioners aren’t showing up when they’re called, or they no longer want the job because they can’t afford to do it anymore.

“We need to find a way, if we’re going to continue the bail commissioners, to make sure that they can be paid for their services,” King said.

One of the main challenges for the bail commission as they try to understand the impact of bail reform is that there’s a lack of relevant data.

Public defender Randy Hawkes says there have been a lot of anecdotal stories driving the debate around how the law is working.

 “Until we have an understanding and get out hands around the size of the issue, I don’t know that we can make reasoned recommendations to the legislature,” Hawkes said.

There are efforts underway to aggregate hard numbers for the commission. The state Attorney General’s office has passed along $45,000 in federal grants to a nonprofit called the Pretrial Justice Institute to collect data on bail reform.

According to John Clark at the Pretrial Justice Institute, they plan to compare county jail populations from before and after bail reform went into effect. This includes a defendant’s bail amount and how long they were held pretrial.

The timeline on when those numbers will be available for the bail commission is unclear, but the group plans to meet monthly for the next year.