Sununu signs compromise bail law, capping six years of political pressure
Published: 08-05-2024 11:36 AM |
Six years after approving a “bail reform” bill supported by defendants’ rights groups, Gov. Chris Sununu signed a follow-up bill last week that is set to overhaul the state’s bail system once more. Representatives of both parties have applauded the bill.
But the New Hampshire Association of Criminal Defense Lawyers has a more mixed reaction.
“We think that a system that would in our vantage best comport with due process would be a system where everyone was able to have a bail determination made as quickly as possible,” said Jeff Odland, president of the association, in an interview Friday.
House Bill 318 makes a number of changes intended to make it harder for those accused of violent crimes to be immediately released.
Currently, defendants arrested outside of court hours are seen by bail commissioners – trained volunteers – who meet them at police stations at all hours of the night and decide whether they can be released ahead of their arraignment, which comes within a few days.
But HB 318 establishes different rules for those arrested for a series of offenses: homicide; first-degree assault; second-degree assault; felony-level domestic violence; aggravated felonious assault; felonious sexual assault; kidnapping; felony-level stalking; trafficking in persons; robbery; possession, manufacture, or distribution of child sexual abuse images; or computer pornography and child exploitation.
Under the law, those defendants may not see a bail commissioner, but may instead be held in jail until their arraignment, which must be held within 24 hours of the arrest, the new law states.
The law, the bulk of which takes effect Jan. 1, 2025, also creates a new court position that advocates say will help expedite those arraignments: magistrates. The chief justice of the state Supreme Court must designate at least three magistrates across the state, who must be licensed to practice law in New Hampshire. Those magistrates will be empowered to hold arraignment hearings and set pre-trial bail, similar to judges, as well as issue arrest warrants, search warrants, and administer oaths of office.
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Proponents of HB 318 say the magistrate system would allow someone arrested on a weekend or state holiday to receive a bail hearing within a day of their arrest even if the courts are closed for days. The magistrates may be distributed around the state wherever the chief justice deems best, and they may hold arraignment hearings telephonically from anywhere in the state.
“The improvements in this bill will ensure our law enforcement have the best technology, judicial infrastructure, and statutory authority to keep our New Hampshire communities safe,” said Democratic Reps. Linda Harriott-Gathright, of Nashua, and David Meuse, of Portsmouth, in a statement.
Odland and other civil liberties attorneys are more skeptical. To the NHACDL, the 24-hour potential waiting period for people arrested for serious charges – and the lack of a bail commissioner option – means that some people who are not a threat to others might still be held in jail for a full day, potentially creating problems for their jobs and families.
“If the determination is made that they’re not a danger and they’re going to appear (in court), they are presumed innocent, and they should be released back into the community as quickly as possible,” he said. “So by not allowing them to see the bail commissioner, it’s likely there’ll be a large number of folks that are held at least up to that 24-hour threshold.”
Odland also objected to a provision of the bill that states that if someone is arrested while already out on bail for one of those serious offenses, they be held in jail until the next court date.
But Odland praised the creation of the magistrate system, which he said could benefit defendants who are arrested on a Friday evening – and who would otherwise be held in jail over the weekend.
“It’s certainly encouraging that there will be people able to at least set bail over the weekend, which was not originally contemplated in some of the iterations of the legislation,” he said.
The law comes at the end of six years of political pressure from Republican lawmakers, police unions, and others to roll back or change New Hampshire’s 2018 bail law. That law required bail commissioners and judges to determine whether a defendant was a danger to themselves or to others and to use that conclusion to set bail. Supporters, who included the American Civil Liberties Union of New Hampshire, said the bipartisan 2018 bill reduced the number of people held in jail for low-level offenses simply because they could not pay. Opponents, who included police departments, said the law had required them to release too many repeat offenders.
Lawmakers had quarreled for years over how to change the 2018 bail law; HB 318 was a bipartisan compromise to do so.
“This term, we made gigantic strides to fix issues that arose with past reforms, involving all the relevant stakeholders from law enforcement to formerly incarcerated people, to prosecutors and defense attorneys, the court system, and the ACLU,” Harriott-Gathright and Meuse’s statement continued.
HB 318 also:
■Adds limits when judges can punish defendants for not appearing in court in the past. Currently, defendants who have failed to appear in court at least three times over the past five years have a rebuttable presumption that they won’t appear the next time, which can be used to deny them bail. Moving forward, that “look back” period will be shortened to three failures to appear in three years.
■Increases bail commissioner fees from $40 to $60. Currently, bail commissioners are paid $40 for each arraignment they carry out. But many of them don’t see that money because the defendant is supposed to pay it after being arrested, and many defendants don’t have the money. HB 318 would increase the payout to $60 and allow bail commissioners to be paid directly from the courts; the courts would then be charged with recouping the cost from the defendant.
■Requires police departments to inform victims if the perpetrator is being released after their arrest. The bill states that the police must make a “reasonable effort” to inform the victim if a bail commissioner determines they may be released.
■Allows courts to order electronic monitoring as a condition of release, and allows counties to set up a system for requiring defendants to pay for that monitoring if they are deemed to not be indigent. The bill allows counties to “develop criteria” for how to determine whether a defendant does not have enough money to pay for monitoring themselves; if that is the case, the county must pay.