Commentary

Commentary: State must look beyond money in search for solutions

May 25, 2021 6:10 am
The corner of a crumpled up dollar bill

Low-income programs are funded through a mix of federal and state dollars. (Getty Images)

New Hampshire’s legislative sessions are typically dominated by a few themes and bills that consume headlines. Then there are a couple themes that return year in and year out like a bad habit. Recent weeks have reminded me of one of these more pernicious themes, and that’s New Hampshire’s preference for spending money on failed ideas of old rather than investing in new ideas, even those that could save money down the road. 

I’m not suggesting that we abandon all fiscal responsibility, but our preoccupation with the price of an idea can block important reforms that make financial sense in the long term. Such preoccupation can also blind us to the political motivations at work in blocking or opting against meaningful reforms.  

This sticker shock phenomenon shows up in nearly every legislative issue area, but by way of example let’s talk criminal legal reform and elections. 

Again this session, the Legislature took up legislation related to bail reform, critical legal reform enacted in 2018 that strives to reduce the number of people who are held in jail when they are presumed innocent and are awaiting the resolution of their case. 

We were one of the first states to enact comprehensive bail reform, which is gaining momentum nationwide as a necessary step in ending mass incarceration, and addressing racial and economic disparities in the criminal legal system. 

Since the enactment of bail reform in 2018, every legislative session has seen an attempt to roll it back, led primarily by law enforcement. This session was no different. Senate Bill 92 sought to reverse bail reform by flipping the criminal legal system on its head and putting the burden on the defendant to prove that they are not dangerous, versus the state having the burden to prove that the defendant is. This flip is a dangerous precedent to set for a criminal legal system built on a presumption of innocence and the state having the burden of proof. 

But the real frustration with SB 92 is that law enforcement and their allied legislators were given a roadmap for reforms that could meaningfully have helped people pretrial, and they ignored it.   

The Legislature created a Commission on Pretrial Detention, Pretrial Scheduling, and Pretrial Services in 2018, and revived it again in 2019. The commission met throughout last year and included a wide range of stakeholders, including legislators, judges, law enforcement, the Department of Justice, the New Hampshire Public Defenders, and the ACLU of New Hampshire. 

The commission’s final report unanimously recommended that “minimal standards for pretrial services be established statewide,” and “all counties employ a sufficient number of pretrial case managers to effectively manage each county’s caseload and that each county enable telephonic check-ins and GPS tracking for people released pretrial and for whom such pretrial services are warranted.” 

The commission did not develop these recommendations blindly. The two counties in the state that already offer robust pretrial services – Strafford and Rockingham – “reported cost-savings by reducing pretrial detention costs and reported high rates of success determined by percentage of people who do not reoffend while participating in the program,” as documented by the commission in its report.  

Here were recommendations that could actually address the issue that law enforcement cited as their reason for pursuing SB 92: people who reoffend while out on bail. Were any of the recommendations taken up in the legislation lobbied for by law enforcement this session? Nope. Not a one. 

The commission acknowledged that “providing pretrial services will cost money for those counties that do not already provide such services,” however, it also pointed out that once established, pretrial services achieve cost savings for a county. 

The cost of implementing the commission’s recommendations make them a hard sell in this state. And yet, if our state were actually interested in improving what happens pretrial, it would invest money in pretrial services given their proven track record – and given the cost savings over the long term. 

This experience reminds me of another case study that keeps repeating. For multiple legislative sessions, we have heard legislators and the Secretary of State’s Office talk about the importance of ensuring that our voter rolls are as accurate as possible and that our election data is secure. In pursuit of these goals, the idea always arises of comparing our voter rolls to those in other states in order to identify people who are registered in more than one state. 

Previously, New Hampshire participated in the Interstate Voter Registration Crosscheck System for this purpose, which, while free, proved to be highly insecure and inaccurate and, as a result, no longer exists. 

Some politicians in New Hampshire have proposed developing our own Crosscheck-like system with neighboring states. This proposal is head-scratching when there already exists a reliable, secure multi-state system for comparing voter information across state lines – the Electronic Registration Information Center. 

ERIC is the only interstate system currently available for comparing voter data across states. The number of states participating in ERIC continues to grow with states led by both Republicans and Democrats. Membership currently stands at 31 states plus the District of Columbia. 

Information shared with ERIC is managed by participating states, rather than by a political office of one state as was the case with Crosscheck. Data shared via ERIC is also stored on secure servers with the highest standards of security matching those of the finance industry, contrary to Crosscheck. 

And the cherry on top, ERIC provides much more reliable, and even faster, results because it compares more data points across states. 

So what is the hang-up? ERIC comes with an initial fee for joining and an annual fee thereafter. Estimates for annual dues range from $18,000 to $21,000, with an initial entry fee of $25,000. The price tag has been repeatedly pointed to by legislators and the secretary of state as reason for not joining, ignoring the fact that our state previously spent over $100,000 to hire a new staff person at the Secretary of State’s Office to, in part, review the confusing and inaccurate Crosscheck data. 

The phrase “you get what you pay for” comes to mind. ERIC is more reliable and more secure than Crosscheck. Like the investment in pretrial services, ERIC would actually save money on the back end by reducing the time and resources spent tracking down all the false returns that a flawed system like Crosscheck generated. 

If the accuracy and security of our voter rolls were the actual priority, we would invest in ERIC. Instead, Gov. Chris Sununu vetoed legislation to join ERIC in 2019, and efforts to include ERIC in legislation this session were defeated. A 2020 bill was tabled in the House due to COVID-19. 

New Hampshire’s continued refusal to join ERIC is even more mind-boggling when you factor in the estimated $11 million in federal Help America Vote Act funding that is available to cover the cost. 

So, here is the question. Is this really about money or is money a convenient cover for politics? 

Law enforcement has sought to repeal bail reform almost from the day it was enacted. They did not preview SB 92 with other stakeholders or suggest its changes to the commission last year. I don’t believe law enforcement wants to improve the system. Rather, they want to go back to a system where far more people are jailed pretrial, the collateral consequences of such detention be damned. 

SB 92 was retained by the House Criminal Justice and Public Safety Committee in part because it does not reflect any of the commission’s recommendations. This is a constructive step, albeit with a still uncertain outcome. 

Crosscheck was championed by Kansas’s former secretary of state Kris Kobach, an ally of former President Trump and chair of Trump’s sham “Commission on Electoral Integrity.” So, as an alternative to Crosscheck, even a defunct Crosscheck, ERIC inevitably gets perceived as a partisan alternative, despite its member states being as red as Texas, as blue as Rhode Island, and as purple as Georgia. 

Secretary of State Bill Gardner also recommended that New Hampshire join Crosscheck. He and his office have, in turn, consistently opposed joining ERIC. 

These are two out of countless examples every session where cost seemingly prevents meaningful reforms, despite long-term savings. In a state where elections can be swung by allegations of one’s support for an income tax, sticker shock is always a convenient excuse. 

In a state that so prides itself on living on the cheap, however, price tags are also convenient cover for political motivation. When we reward legislators for not spending money, we enable them and other stakeholders to use cost as a cover story. Look over here at the price tag; don’t look over there at the partisan or ulterior motives. 

When we are so susceptible to financial arguments, we leave ourselves vulnerable to being duped. We get distracted by the money and miss the politics. Money can hide the real motivations for opposing new ideas and repeating failed ones. 

When it comes to our values and impact on our day-to-day lives, the politics are just as consequential as the price tag. As constituents and voters, it’s important to discern when money is a reason versus when money is a ruse. 

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