Bail reform debate has some proposing an end to bail commissioners


New Hampshire Bulletin

Published: 05-04-2023 11:31 AM

For Thomas Anderson, a phone call at 2 in the morning is an invitation, not a nuisance. 

On the other line is likely a police department and a person who has just been arrested and charged. And as a bail commissioner, Anderson is one of 100 people in the state who can determine, at this hour in the night, whether the defendant can be released on bail or should be held in jail until a hearing. 

The journey can be a slog. Depending on the department, Anderson might have a 40-minute drive ahead of him. And the reward isn’t lucrative. For his effort, Anderson will receive $40, but only if the defendant pays that fee immediately.

Still, Anderson says the drive, the chance to meet and talk to the defendant, and the task of reviewing their criminal record and determining their risk to the community if released, all serve as their own reward.

“You meet interesting people,” he said in a hearing before the House in February. “And I like that. I like to talk to people. I like the face to face. And I realize that this is important to the defendant. It’s a moment in time that they want to forget. I try to make it as pleasant as I can for them but, again, I’ve got to decide what to do.” 

New Hampshire courts are served by bail commissioners like Anderson, many of whom work at odd hours. The system delivers defendants the means to return to their lives quickly, while sparing judges the hassle of driving to police stations after hours themselves. 

But as a five-year debate continues to rage over whether to make it easier or harder to release defendants on bail, some have suggested that the bail commissioner system should be replaced altogether. 

Ever since New Hampshire passed its bail reform law in 2018 – a sweeping bill that limits the circumstances where defendants can be held without bail – critics of the change have argued it has caused more defendants to be released and has been unevenly applied.

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Supporters of bail reform have noted that there is no evidence that more defendants have been released. And they’ve pointed to data showing that fewer people have been arrested in the state since bail reform passed, not more.

But the debate has drawn attention to the state’s bail commissioners, and whether their decisions have been less consistent since the 2018 bill passed.

Attempting to address the critiques, some supporters of bail reform have suggested replacing bail commissioners entirely and implementing a new system: magistrates. Under House Bill 46, New Hampshire would study implementing court magistrates to work full time to make decisions on bail, allowing defendants to see court officials faster than waiting to see a judge.

“If we really care about getting people before a judge, and that’s what’s important here, this is our opportunity to do that in a way that does not undermine liberty,” argued Frank Knaack, policy director for the American Civil Liberties Union of New Hampshire, speaking on the bill to House lawmakers in February. 

Unlike the current bail commissioner system, in which commissioners are paid $40 per defendant and work their own voluntary hours, magistrates would be full-time employees of the courts and would be required to handle the bail cases. 

Proponents of the idea say that would provide more consistency and training in bail decisions, while still allowing defendants to be released quickly for minor charges. Some states use magistrates to determine bail, while others, like Massachusetts, use a hybrid system of bail commissioners and magistrates to address different severities of offenses. 

“What this bill does is regularize the system – standardize the system in a way that will have more predictable decisions from the first person setting bail,” said Albert “Buzz” Scherr, a law professor at the University of New Hampshire. “And I think that’s a good thing.”

The idea first originated last year as a proposal by the state’s judicial branch to help alleviate high caseloads. This year, however, the judicial branch recommended the Legislature not pass the magistrate system and instead study the issue. 

Richard Head, government relations coordinator for the judicial branch, said that a move by the Legislature last year to repeal the “Felonies First” program, which had directed felony charges to the superior courts, meant that lower courts are suddenly dealing with far more cases. That bump in workload meant the system was not in a good position for radical change, Head said. 

Opponents of the idea – who include bail commissioners themselves – have cast doubt on whether magistrates would be able to handle the caseloads at a time when the state’s judicial system is strained.

Anderson argues the proposal is counterproductive. 

“The bill wants to replace 100 bail commissioners or so – we work at no cost to the government – with 15 magistrates,” he said. “We’re going to essentially support 11 superior courts, 10 circuits with 34 district courts, and 200 or so police departments. I don’t think it’s going to work.” 

Trixie Lefebvre, a bail commissioner in Londonderry who works primarily for the Manchester Police Department, said the current system does not burden taxpayers and delivers the same results. 

Instead, commissioners like Anderson and Lefebvre say they would rather that lawmakers improve the existing bail commissioner system, for instance by providing training. 

“We really do appreciate the fact that there’s a conversation in here about additional education,” Lefebvre said. “We welcome it. More than one hour per year in September, October would be welcomed to the bail commissioner community. Having something other than our handbook would be appreciated.”

The magistrate proposal is not likely to happen soon; HB 46 would create a study committee to look into the idea, not to implement it. The bill will be voted on in the Senate Judiciary Committee in the coming weeks and then receive a vote from the full Senate. 

But observers say even studying the issue could be helpful to attempt to quantify exactly how many people have been released since the bail reform law passed, whether that number is an increase, and whether more people are committing crimes while on bail.

“We’re excited about this opportunity, because instead of holding people (and) depriving people of their liberty without any data to support that, this gives us an opportunity to actually look at the facts,” Knaack said in a Senate Judiciary hearing last week. “What’s actually happening? Is it, in fact, bail commissioners failing to do their job, failing to utilize the multiple tools that they have under current law?”

The proposed study committee comes as efforts to pare back the 2018 bail reform bill are facing setbacks. In April, the House Criminal Justice Committee retained Senate Bill 252, which would have automatically held people in jail without bail for up to 36 hours if they were charged with any of a list of 13 serious offenses

The committee also retained Senate Bill 249, which would have required that a person accused of committing a felony, a Class A misdemeanor, or a DWI while on bail for another charge be held without bail. Retaining the bills means the committee will not act on them in the 2023 session but will need to take action in 2024.

At the time, House Criminal Justice Committee Chairman Terry Roy said the bills were retained to give the committee more time to consider the evidence that they are necessary. 

“We need to look at those and look at what’s really going on,” Roy said. “Not take anecdotes. Not take panic measures.”