In a unanimous decision, the Supreme Court of New Hampshire has ruled that judges in trial courts can set cash bail for defendants at an unattainably high amount, as long as the court deems that the defendant is a flight risk.
In an opinion released Friday, the court agreed with the Attorney General’s office that setting high cash bail in those cases is justified, even if the defendant isn’t also deemed a danger to the public.
[Read NHPR's previous coverage of bail reform here.]
The ruling comes in the wake of a 2018 law that prohibits judges from setting cash bail in so high an amount that defendants who aren’t dangerous are forced to remain in custody. Some police chiefs say that’s created a “catch and release” system in the state, while supporters of the reform say the courts retain the ability to hold repeat offenders in custody before trial.
The Supreme Court challenge was brought on behalf of an indigent woman arrested on drug possession and sale charges. A superior court judge originally ordered her released on $25,000 cash bail, citing her risk of flight.
Her public defenders appealed, arguing that under the 2018 statute, the judge needed to tailor the bail conditions to the defendant’s individual financial circumstances.
The court rejected that argument, affirming that judges can set unattainable bail amounts if the defendant is either deemed a flight risk or found to be a danger to the community or themselves.
The court added, however, that “if the legislature disagrees with our statutory interpretation, it is free to amend the statute, as it sees fit.”
After receiving bipartisan support in 2018, the bail reform law has come under criticism by some police chiefs who argue that offenders are being released before trial only to reoffend again. Backers of the reforms say the intent of the bill is to ensure that indigent defendants aren’t held in jail simply because they can’t afford to post bail.
A commission was created to study the issue and possibly recommend reforms to the statute.
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