The essence of judicial discretion

The process of how a judge makes a decision under New Hampshire's bail laws
N William Delker

N. William Delker

Imagine you’re a judge taking up your morning docket. The day starts with an arraignment and bail hearing for an individual charged with first degree assault with a firearm. The prosecutor informs you the police received a 911 call at 10 p.m. the night before for a gunshot in the city center. The police sped to the scene and found the victim in pain and bleeding profusely from a bullet wound to his abdomen.

The 23-year-old victim was conscious and told the police he was just walking down the street when the defendant, a former high school classmate, held him at gunpoint and tried to rob him. The victim told the officers that when he resisted, the defendant shot him in the stomach. At the hospital, he was rushed into surgery so the police couldn’t get a more detailed statement. As the ambulance took the victim away, the police found a pocket knife on the ground where the victim had been. The knife was closed.

The police arrested the defendant, who lives nearby. He waived Miranda and gave a voluntary statement, admitting he had met with the victim, who had asked to buy marijuana. The defendant said that when they encountered each other on the street, the victim pulled out a knife and tried to steal his drugs and money. The defendant couldn’t describe the knife other than that it had a five-inch blade. The defendant told the police he was acting in self-defense when he drew his gun to protect himself. During their struggle, the defendant said, the gun went off. The defendant told officers he didn’t call the police because he feared he’d get in trouble for selling marijuana.

The narrative gets even less clear-cut.

The prosecutor informs you the defendant has a criminal record that includes misdemeanor drug charges and a five-year-old misdemeanor assault conviction. The prosecutor can’t tell you more about the latter because he didn’t have time to review the file overnight. The defendant was also convicted of resisting arrest two years earlier, and he’d been charged three times with violating bail conditions, but those charges were dropped. The prosecutor asks you to hold the defendant without bail, arguing he’s a danger to the public and will not abide by reasonable bail orders.

The defense lawyer counters, requesting you to release her client on his own recognizance. She tells you the defendant works a steady job at a local warehouse that pays just enough to cover his rent and child support payments. She says he cannot afford to post any cash bail. The defense attorney argues her client is not a danger to the public because he was acting in self-defense and should be free pending trial.

What do you do?

A court can impose a range of conditions on a person pending the trial. On one end of the spectrum, the defendant can be released on the simple promise that he or she will show up to court for the trial. This is called “personal recognizance,” or PR bail.

On the other end, the court can incarcerate the accused until the case is resolved, known as “preventative detention.” In between, the court can require the defendant to pay cash or post a bail bond which the defendant gets back if he abides by bail conditions but may lose if he commits a new crime, skips town or violates other requirements of the bail order.

Bail conditions

The topic of bail reform has received a lot of attention nationally. Locally, the NH Legislature has grappled with setting parameters for incarcerating or releasing a defendant prior to trial. My goal here is not to wade into the policy debate, which is better left to elected officials and policymakers. My objective is to explain the process of judicial decision-making under the existing bail laws.

The state and federal constitutions set the parameters for the analysis that says every person charged with a crime is presumed innocent until the prosecutor convinces a jury beyond a reasonable doubt the person has violated the law. Both constitutions also prohibit a judge from setting excessive bail but do not define “excessive.”

The U.S. Supreme Court, meanwhile, has recognized that despite these constitutional limits, a judge can order a defendant held in jail without bail pending trial if the defendant is a danger to himself or the public.

The Legislature has enacted a statute addressing these competing interests that begins with the presumption that everyone charged with a crime should be free pending trial. The law also prohibits a judge from requiring an accused to post cash bail or a bond the person cannot afford based on their financial circumstances. The prosecutor can overcome that restriction only by establishing certain facts. One is proving to the judge by clear and convincing evidence the defendant is a danger to the public and no bail conditions could safely release the person.

This is not a trivial burden. To hold a defendant without bail, the judge must be convinced that it’s “reasonably certain” or “highly probable” the defendant will present a danger to the public if released prior to trial.

A number of other factors make the bail decision further challenging. A defendant charged with a felony and held in jail is entitled to a bail hearing within 24 hours of arrest (excluding weekends and holidays). Because the case is so fresh, the police often have not had time to complete a thorough investigation and interviews and police reports have not yet been compiled. Thus, when making arguments about bail, the prosecutor and defense lawyer frequently have only the bare facts that gave the police the basis to arrest the defendant and the defendant’s prior criminal record.

The judge must keep in mind the choice of whether to incarcerate a defendant or release the person prior to trial has significant consequences.

Pretrial detention can last over a year, but even incarcerating the defendant for a short period of time can have an incredibly destabilizing effect. The individual can lose a job and apartment, which can impact the defendant’s family and ability to support children. On the other side of the equation, some people are incredibly dangerous. If the defendant is released and commits a violent crime, that act may have a life-altering consequence for an innocent victim.

A further complicating consideration in the bail decision is the availability of resources to supervise a defendant in the community pending trial. The bail statute requires the judge to evaluate whether there are conditions the court can set to reduce the risk that the defendant will harm the public. Those conditions may include a curfew, house arrest, an ankle monitor, orders against using drugs or alcohol or requiring substance use or mental health treatment.

The availability of pretrial supervision services necessary to make these conditions effective varies widely from county to county because funding decisions are made by each county delegation. Some counties have well-established pretrial service officers who can monitor a defendant’s compliance with bail conditions. Others have no such program. Bail conditions are less effective when they rely on the honor system, especially if a defendant has a history of violating bail conditions.

This brings me back to the case I started with.

The defendant is charged with a serious gun crime and has some history of convictions for violence. There is some indication he may not have complied with prior bail conditions. On the other hand, there is evidence the defendant was acting in self-defense, he does not have a lengthy criminal record, and he has a stable job and living situation.

There is no “right” or “wrong” answer to the bail decision in this case. Instead, as a judge, you must apply the legal test to the facts and weigh and balance the competing interests. You must decide if there is clear and convincing evidence that the defendant will present a danger if released while awaiting trial.

That is the essence of judicial discretion. Reasonable minds can differ. You be the judge.

N. William Delker is a judge who sits in Hillsborough County Superior Court-Northern District in Manchester. This article is being shared by partners in the Granite State News Collaborative. For more information, visit

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