As bail reform goes to negotiations, some say a compromise is finally possible • New Hampshire Bulletin

Ever since the New Hampshire Legislature passed a bill aimed at reducing the number of people held without bail in 2018, lawmakers – particularly Republican ones – have sought to roll it back. But among those seeking to limit who can be released on bail, divisions have emerged, and those disagreements have doomed past efforts. 

This year, lawmakers are in the same position: considering a bill to reduce the availability of bail and wrestling over the best way to do it. But this time, some say a deal is closer than ever. 

“It has taken years of debate to figure out how to fix our broken bail system but this bill now presents a solution to fix the problem,” argued Sen. Sharon Carson, the Senate majority leader and a Londonderry Republican, in a statement. 

On Wednesday, House and Senate negotiators will meet to try to hammer out an agreement on House Bill 318. As passed by the House, that bill would have created a system that would allow magistrates to adjudicate bail issues when judges are unavailable, an idea intended to reduce the amount of time people have to wait behind bars after being arrested.

The House bill would have also required that people charged with a series of felonies be held in jail until they can be seen by a judge or magistrate. Currently, people who are arrested during non-court hours may be seen by a bail commissioner, who may make an initial determination of whether they can be released before seeing a judge. The House bill would block the bail commissioner option for those charged with certain felonies.

To House representatives, the legislation was intended as a compromise with the Senate. It came after months of efforts to cobble together a bill that could please both chambers. And it included most – but not all – of the 13 felonies and misdemeanor charges that Senate President Jeb Bradley had requested lead to automatic jail time until the defendant’s arraignment.

But the Senate has made its own tweaks to the compromise bill. And now, the matter is getting another round of negotiations. 

Here are some of the sticking points.

The standard of evidence

One major difference between the House and Senate versions of the bill is how much evidence the judge would be required to see before holding someone charged with a violent felony without bail. 

Currently, the standard is high. In order to deny bail, a judge must determine by “clear and convincing evidence” that releasing the defendant “will endanger the safety of that person or the public.” 

But there is another, easier, standard to meet: “preponderance of the evidence,” in which the judge need only determine that the risk of danger is more likely true than not true. 

The House had sought to create a new category – “substantial evidence” – to serve as a middle ground. Substantial evidence is defined as “more than a preponderance of evidence and less than clear and convincing evidence.”

But the Senate wants to lower the standard for bail denial down to preponderance of the evidence for all those charged with violent felonies. 

The question of magistrates

Recently, bail reform proponents have pushed one recurring idea: adding magistrates to the system. Magistrates would present an alternative to judges when it comes to holding arraignments, potentially reducing the amount of time defendants are waiting in jail without bail, advocates say.

Both the House and the Senate’s bills require the judicial branch to hire magistrates, and both would require the branch to determine the cost of doing so and would authorize funding for it out of the state’s general fund. But the Senate would require at least three, and the House would require at least 10.

Both the House and the Senate bills would require either a judge or a magistrate to hold the arraignment within 24 hours of their arrest. But the Senate would also allow the magistrate to hold telephonic arraignments. Under the Senate bill, if a defendant wanted to appeal the magistrate’s telephonic hearing, they could request a new hearing in person. 

Electronic monitoring and protective orders

The House version of the bill would require courts to order electronic monitoring of any defendant who is the subject of a domestic violence or stalking protective order. Currently, electronic monitoring is an option for judges in those cases, but not mandatory. 

Under the House bill, defendants would be responsible for covering the cost of that monitoring, unless the court determined that the defendant couldn’t afford to do so. The state’s counties would develop criteria to determine when a defendant was sufficiently indigent. 

The House bill would also require police departments to attempt to contact the alleged victim within an hour, to warn them if a bail commissioner was releasing the defendant ahead of their arraignment. 

The Senate removed many of those provisions from the bill – including the requirement that courts order electronic monitoring.

Paying bail commissioners

New Hampshire’s bail commissioners are meant to earn $40 for each defendant for whom they hold a hearing. But commissioners must collect that fee from the defendant directly, and many have testified that the defendant does not have it when arrested, making recovery very difficult. 

Both the Senate and the House bills would change the system so bail commissioners would be paid directly by the court, instead of the defendant; the court would then be responsible for collecting the fee from the defendant. And both chambers’ bills raise the payout to $50 per bail commissioner visit. But while the House bill would pay the commissioners on a monthly basis, the Senate bill would pay them every 90 days.

A ‘political reality’

For advocates of rolling back or limiting the state’s 2018 bail reform, the proposed compromises in the House and Senate are welcome: They allow courts to more easily hold defendants of violent crime.

“No one should be denied bail solely because they cannot afford it. This bill does not change that,” said Sen. Daryl Abbas, a Salem Republican, in a May 16 statement. “However, defendants accused of violent crimes should go in front of a judge to determine if they are a threat to the public. This bill is a comprehensive solution to a complex problem we are facing, and it is critical we pass this bill to ensure the safety of our state.”

And for supporters of the 2018 bail reform, the bills offer measures that could ensure defendants of other crimes are released more quickly after their arrest, allowing them to return to their lives.

If it were up to Buzz Scherr, professor and chairman of the International Criminal Law and Justice Program at the University of New Hampshire Franklin Pierce School of Law,  lawmakers wouldn’t be changing anything about the 2018 law. Scherr, who has followed and testified on the bills for years, has pointed to falling crime rates in New Hampshire in recent years as evidence that the 2018 law has not made the state less safe and that reforms aren’t needed.

But, said Scherr in an interview: “That’s not political reality. That’s just not going to happen.”

Of the two proposals for reform, Scherr personally prefers the House version – which he terms the “grand bargain” – and argues that the lower evidentiary standard for holding a defendant in the Senate version would lead to more people being held after being arrested, “but not necessarily the right people.” 

Those who want to pare back bail reform have argued that police departments have been overwhelmed with defendants who are released and reoffend. But Scherr said the impact of making bail stricter could upend individuals’ lives in the interest of cracking down. If people are held in jail for days or weeks after their arrest, they can lose everything – even if they are ultimately found not guilty at the end of the trial. 

“You’re going to hold people who shouldn’t be held,” he said. “And it’s going to ruin their lives.”