Chris Webber was in jail on a couple hundred dollars cash bail the day his daughter was born. He wasn't there because of his trespassing and resisting arrest convictions. He was there because he misses court dates, and he's poor.
In fact, Webber spent a total of 60 days last year at the Valley Street Jail in Manchester for those two reasons.
I met Webber in October at the jail. He was being held on $500. What money he has, he says, he needs for “formula, diapers, and wipes. Not me getting out” of jail.
Webber is one of the dozens of people detained each day at the Valley Street Jail, kept behind bars because they are unable to post bail of $1,000 or less. According to NHPR's analysis of data from the jail, typically 60 percent of these people are charged with only nonviolent offenses like drug possession, theft, trespass and resisting arrest. Because of their inability to pay even relatively low bails, many will spend more than a month behind bars awaiting court dates.
State law requires judges to release defendants before trial unless they pose a danger to the public or are deemed unlikely to show up for court. Money bail is designed to give those considered a flight risk an incentive to return for court.
But even those tasked with setting bail say the system means poor people are more likely to be held in jail before trial, while affluent defendants get released -- even if those defendants have identical criminal records.
“We get into trouble,” said Superior Court Chief Justice Tina Nadeau, “when we set low cash amounts because we think somebody might be able to post it, and really the people we’re seeing are poor and can’t.”
Inequity in the bail system is compounded by economic disparity outside the courts, experts say. Poor people are more likely to move residences and miss scheduling notices from the court. Some need transportation, and others may lack the skills and resources to keep track of appointments.
“They aren’t generally trying to skip town,” Nadeau said.
According to his police report, Webber’s resisting arrest charge came about when police were searching for a girl who was missing from the juvenile detention center. Police found the girl with Webber, then 17, in a parking lot. The two saw the officers and took off running. Webber continued to run after an officer called for him to stop.
After he was arrested on a resisting arrest charge, Webber was released on his own recognizance. He pleaded guilty, and received a deferred sentence, meaning he wouldn’t go to jail so long as he stayed out of trouble for six months, and completed 20 hours of community service. It was after those six months had passed that Webber failed to appear for his mandatory deferred sentence hearing.
Like many held on low bail, Webber’s record – trespassing and resisting arrest – is limited to low-level non-violent offenses. If he had the money, Webber could get out, said Cathryne Sprince, who was caring for Webber’s and her infant daughter. He doesn’t. In the meantime, his inability to post bail meant Webber missed his infant daughter’s birth.
“She’s gonna know when she’s older that her dad wasn’t there,” Sprince said.
Being locked up has consequences for inmates and their families. It can cause job losses, evictions, and loss of child custody. This is true, said Devon Chaffee with the New Hampshire ACLU, even in cases where the charges are ultimately dropped.
Research shows incarceration, even just for a few days, increases the likelihood someone will commit additional crimes. For those detained pretrial, it increases the likelihood a defendant will be found guilty of a crime, plead to a charge, and be sentenced with incarceration.
Holding people in jail also comes at a public cost. Hillsborough County taxpayers spend $73 dollars a day for each person held at Valley Street Jail, including overhead. The jail’s superintendent, Dave Dionne, would like to see low bail eradicated.
“It’s not a high bail,” he said, “so it’s not a dangerous issue. I don’t know why they can’t just be put out on [personal recognizance] bail.”
And yet, Judge Nadeau said, money bail is the only system most New Hampshire judges have to make sure even low-level defendants appear.
“We’re using a lot of resources continuing hearings, having witnesses and folks come back to court because the offender’s not appearing," she said.
Some courts are trying other ways to get defendants to show up.
A Manhattan court’s pilot program allows defendants to appear anytime during a specified week, including a day with extended evening hours.
Others are looking to change the bail system more fundamentally. Washington DC has eradicated money bail altogether. Instead, the city relies entirely on pretrial supervision – like a parole officer, except for people awaiting trial – to keep track of defendants before trial.
Although all New Hampshire counties use money bail, Strafford, Merrimack, Rockingham and Sullivan counties also fund pretrial supervision for some defendants. If Nadeau had her way, lawmakers would agree to fund a statewide pretrial supervision program.
Nadeau is not the only one in favor of statewide bail reform. The 24-member Interbranch Criminal and Juvenile Justice Council, which includes the NH ACLU, has decided to make bail reform a priority over the next few years.
The path forward, however, is not clear.
According to NH ACLU’s Chaffee, the first step is to establish who is held on bail now, and why.
“If New Hampshire’s really going to consider bail reform seriously, then we need to have a sense of what the baseline is so we can evaluate the impact of any reform measures,” she said.
A report commissioned by the New Hampshire Department of Justice last year attempted to gather such data. However, inconsistent jail software meant the study covered only 60 percent of the state.
Still, Chaffee said, “I do think there’s a real interest in finding a solution to this issue.”
In the meantime, defendants who can afford bail, go home. The rest, including Chris Webber, will spend months behind bars waiting for trials and hearings.