Disagreements voiced as bail reform is weighed in two NH Senate bills
Measures aimed at tightening previous laws, but opponents say they aren’t needed
Reform of the state’s five-year-old bail reform laws is the subject of two bills getting traction in the Legislature. This time, the aim is to protect victims, at least temporarily.
A person who is charged with a felony, Class A misdemeanor or drunken driving charge while out on bail for a similarly serious crime must be detained under a bill that passed the Senate and is now being considered by the House of Representatives.
A hearing before the House Criminal Justice and Public Safety Committee was held Wednesday on Senate Bill 249 Another bill, SB 252, also heard by the committee Wednesday would hold similar defendants to see a judge prior to getting bail.
The committee, which had planned to vote on recommendations on the two bills after their hearings Wednesday postponed those votes until April 12.
They are efforts to at least tweak laws that were overhauled five years ago, primarily to address concerns that some defendants were being held because they lacked the money to post bail.
Law enforcement authorities support the two new bills to help protect victims, but civil rights defendants said the measures are not necessary, add to the complexity of the bail law, and are possibly unconstitutional.
Sen. Daryl Abbas, R-Salem, prime sponsor of the bill, said what it is saying is “because you violated those conditions twice already, we are not going to give you the benefit of the doubt.”
According to the bill, detainment will be in limited circumstances “based upon the rebuttable presumption that the person will not abide by the conditions that the person will not commit a new offense.”
The bill, if passed, would become effective Jan. 1, 2024.
“I would suggest if you don’t support this, why have conditions for bail at all?” he said.
He was peppered with questions by the committee.
How does this reconcile with the concept of innocent until proven guilty? Abbas said that is the trial standard.
“What we are talking about is conditions of release,” Abbas said. “Like, don’t use drugs or alcohol. They can revoke your bail,” if the use.
Asked if this takes away prosecutorial authority, Abbas, an attorney, said no. “If they don’t intend on seeing it through they should not be issuing the complaint,” he said.
Asked about the cost to counties’ budgets, Abbas said there is no way to know. But there is also a cost to additional cases having been committed.
“The hope is that it will reduce costs for repeat offenses,” Abbas said.
The committee recently took a tour of county facilities and was told they are understaffed and underfunded.
The American Civil Liberties Union of New Hampshire is concerned that this is a “three-strikes” bill and does not allow for judicial discretion, said Frank Knaack, policy director.
David Rothstein, a public defender for over 30 years now in private practice in Exeter, said he was representing the NH Association of Criminal Defense Lawyers in opposing the bill.
“This is taking out PR (personal recognizance) bail without an option,” disproportionately impacting the poor. “I do believe, in response to a couple of questions, that the language already exists in the present statute … This statute has become very complicated with a number of provisions and permutations,” he said. “I don’t see the need for an amendment.”
Sometimes, the bail commissioner does not have the entire picture and it is an information issue, he said, adding that there is a need for flexibility.
Energy should be put into implementation resources so that the person is less likely to re-offend, he added.
If the current bail system were working properly, Bedford Police Chief John Bryfonski said he would not be attending the hearing.
He said in an hour, the word “victim” was never used.
In his 45 years of police experience, he said the majority of crime is offended by a disproportionately small group of offenders. Speaking on behalf of the police chiefs association, he supported the bill.
“This is a bill that focuses on prolific, repeat offenders,” he said. “It’s past time that we take some action and think about the victims of crime … can we think about the victims of crime once?”
He said if this bill becomes law it could be a deterrent that could avoid some third offenses.
Buzz Scherr, a professor at UNH Franklin Pierce School of Law, speaking as an individual, opposed the bill and argued it is unconstitutional.
“Slowly but surely we are making progress on the issue of bail reform,” he said. He said there are study committees, funding ideas and training to make adjustments. Individual tweaks here and there … not bills.” He encouraged retaining the bill and that of SB 252 which was also heard.
SB 252, sponsored by Sen. Donna Soucy, D-Manchester, would require that people who are charged with some of the most serious crimes and who pose a danger to individuals – not property crimes – would be held for up to 36 hours to be seen by a judge prior to getting bail. It enjoyed bipartisan support in the Senate.
Soucy said bail reform was introduced five years ago with the primary goal that people don’t sit in jail because of their lack of finances.
While those changes are now in law, the system “unfortunately is very inconsistent,” and there is also inadequate data and infrastructure to support the current law.
She said there is a big difference between cases in Coos and Hillsborough counties.
“We know bail commissioners are not mandated with training,” she noted.
She said the bill, while no panacea, “makes sense for the times we are in.”
She also noted a magistrate system is still being considered. “Maybe we do need to look back at what we did five years ago and fine-tune it, not throw it away,” she said.
“We have to keep public safety in mind,” she added.
Abbas spoke in favor of Soucy’s bill. It focuses on 12 offenses that are not property crimes but where people are victims. He said the hole in the current law is that a person can be released into the public before a petition to hold them can be held, and those hours can be crucial.
“This deals with them in the short term,” Abbas said. “These are the dangerous of the most dangerous.”
Manchester Police Chief Allen Aldenberg spoke in support of the bill.
“Overall, crime may be down, but crimes that are significantly more harmful to the community are up,” he said. “There is now no deterrent for arrest,” he said, due to bail reform.
But Knaack of the ACLU-NH focused on the current bail statute, saying it holds a myriad of ways to hold defendants already.
“The beauty of the current statute is that it is individualized,” he said. He said anecdotes being used to justify the bill are “paper-thin” and not good reasons to throw out a whole chapter of bail reform.
He said that, overall, crime is down drastically since bail reform.
Those who would be held could lose their jobs and care for their families while away, he argued.
David Rothstein of the NH Association of Criminal Defense Attorneys said the best approach on bail continues to be a totality-of-the-circumstances approach.
“I do think you have to look at individual circumstances,” Rothstein said. ”I don’t think the system is broken.”
This article originally appeared at IndepthNH.org, New Hampshire’s nonprofit news website published online by the NH Center for Public Interest Journalism.