N.H. Law Enforcement Officials Frustrated With Bail Reform

May 6, 2019

Credit Emily Corwin/NHPR

NHPR’s Morning Edition been taking a look at criminal justice reform in New Hampshire and its effect on policing across the state.

Gov. Chris Sununu signed SB 556 last summer that brought big changes to New Hampshire’s bail system, but leaders in law enforcement say those changes are making their jobs more difficult.

Under the new law that went into effect in September, judges and bail commissioners now have to consider what a defendant could reasonably afford when setting bail.

The law was trying to achieve two big goals. One, to prevent people’s lives from being ruined by sitting in jail before actually being convicted of a crime just because they’re too poor to make bail. Second, to make sure the public stays safe by still holding people who are dangerous.

But law enforcement officials say bail reform hasn’t achieved this second goal. One of those officials is Goffstown Police Chief Robert Browne. He says one case in particular comes to mind.

“Certainly this most recent case with Gedney kind of brings to light the some of the major shortfalls or challenges as a result of that bail reform,” Brown said.

In March, Goffstown Police picked up 36-year-old Matthew Gedney on charges of prowling and resisting arrest. They found he had several outstanding misdemeanor and felony warrants in multiple towns across New Hampshire.

But they didn’t hold him in jail. Gedney was let go on zero cash bail. Browne blames bail reform for his release, and he says he knew it wasn’t the last they’d hear of Gedney.

On the same day Gedney was due to arrive in court on his charges in Goffstown, he was arrested in Alexandria on charges of breaking into a home and stealing cash at gunpoint.

Since bail reform has gone into effect, police say they’re caught up in this pattern of picking up the same repeat offenders. Those like Matthew Gedney who are released without bail and then skip out on their court dates.

Dan Conley is the prosecutor for the Goffstown Police Department.

“We know what the spirit of this was, and we feel the same way,” Conley said. “We do not want to hold people that do not need to be held, but we want to ability to hold people that need to be held.”

Under bail reform, judges and bail commissioners can hold a defendant without bail, but prosecutors or law enforcement have to prove that an individual is dangerous.

Conley says in the past, prosecutors could argue that someone using drugs could be considered dangerous.

“I would always look at their drug history, drug abuse,” Conley said. “If I have a defendant that’s in front of me that I know we’ve been responding to his house for overdoses, not only is that a danger to the community, but also he’s a danger to himself.”

But now drug use can’t be the sole reason someone is held without bail. This is to keep people from sitting in jail because they have a substance use disorder.

Tuftonboro Police Chief Andrew Shagoury worked with lawmakers to represent law enforcement while the reforms were written.

He says there’s been poor and inconsistent training among judges and bail commissioners, which led to confusion on how to interpret the law. One example being how to determine affordability when setting bail.

“It’s not affordability based on a financial affidavit,” Shagoury said. “It’s based upon what they say they can pay at that moment, and that I don’t think is right because there’s no incentive for people to show up if it’s too low.”

But reform advocates say some of the blame lies with police chiefs who haven’t trained their officers effectively on bail reform either.

These criticisms have pushed lawmakers to create new legislation to clarify the language in the original bill. The ACLU of New Hampshire supports that effort, but it argues bail reform has been successful so far.

Jeanne Hruska is the political director for the nonprofit.

“Any time you have a new law, particularly one as comprehensive as bail reform, it takes a while for a new law to be broadly understood and for there to be consensus as far as how to implement it,”

Hruska says even with some initial confusion, there’ve been early success stories showing how bail reform is working.

The ACLU has anecdotes like that of a New Hampshire mother who says she stole groceries from Market Basket because she couldn’t afford them and had a newborn son.

Before, she might have had to wait in jail for her court date. But instead she was released without bail on the promise she would show up for court. This allowed her to keep custody of her son.

Hruska says more people should be released under bail reform.

“It improves society at large when we stop using incarceration to solve what are really other social issues like homelessness and substance use disorders,” Hruska said. “But obviously incarceration has been a go to answer for governments across our country for decades.”

The number of people held pretrial has decreased in jails across the state. This includes Valley Street Jail in Manchester.

That jail’s population of pretrial inmates has been on a slow decline since in the past few years, but it’s dropped by almost 40 percent since bail reform went into effect.

Hillsborough County Corrections Superintendent David Dionne has even proposed a budget decrease for the next fiscal year. But Dionne says the sharp decline in inmates, is really just shifting the costs onto other agencies.

“I’m not seeing it because they’re getting arrested and released, arrested and released, and not being brought here,” Dionne said. “So that’s why it’s reduced mine. I have no problem with that. But again, your resources on the outside – the police, the sheriff, the courts – that’s quadrupling the caseload now.”

There has been an increase in caseloads in Hillsborough County, but the county attorney’s office says that can’t be directly attributed to bail reform.

They say their attorneys are already overworked, and they don’t have the time to track data that might show a correlation between an increased caseload and bail reform.

The lack of data makes it difficult to determine whether bail reform has been successful outside of the anecdotes and perspectives from law enforcement and the ACLU.

Under new legislation, lawmakers have proposed ways to collect better data and clear up the confusion surrounding bail reform.

SB 314 has support from the ACLU and from law enforcement officials like Andrew Shagoury.

“I’m optimistic,” Shagoury said. “I know I sound pessimistic, but I’m actually optimistic. Through the work and there was compromise on both sides to get something that is better than what we had."

Democratic Senate Majority Leader Dan Feltes is a sponsor of SB 314. Morning Edition Host Rick Ganley spoke with Feltes about how he believes the bill will ease the concerns of law enforcement officials. You can listen to that interview here.