In 2017, more than half of those incarcerated in New Hampshire’s prisons were there because of a violation of probation or parole. (Andy Sacks | Getty Images)
This story was updated on Feb 24 at 5 p.m. to correct the window of time the ACLU used to analyze state arrest data. The data ranges from 2018 to 2020.
Jency Diaz had been arrested and charged for domestic assault in the middle of the night – just past 1 a.m. He had been brought before a bail commissioner, deemed a low risk, and released on $200 bail. Hours later, he returned to the victim, beat her brutally, and sexually assaulted her. He was arrested a second time that same day.
The grim story – from December 2020 – has faded from headlines, but it’s become a catalyst for some to reevaluate the state’s bail reform law. That law passed in 2018 with the intent of reducing the number of lower-income people in the state held without bail. But a group of lawmakers, prompted by police departments and police unions, are pushing this year to pull it back. And advocates for the original bail reform law say they are now fighting to keep it intact.
A new bill this year, Senate Bill 294, would require that any person charged with any of 13 violent offenses be given a rebuttable presumption that they should be denied bail. The bill would cause people charged with those offenses to be detained before a trial for up to 72 hours; after that detention, they would face a judge, who could accept arguments on how to set bail.
Proposed by Sen. Jeb Bradley, SB 294 would make changes to bail for certain lower-level offenses as well. Under the bill, any person who had failed when summoned to appear before the court three times in the previous three years would be held without bail. And any person who had been released ahead of their trial and was re-arrested for a different offense – whether a misdemeanor or a felony – would be held as well.
The bill would restrict some of the provisions of the 2018 bail reform law, which put the decisions over pretrial detention solely in the hands of bail commissioners. That law set out guidelines for when those commissioners should deny bail due to a danger to the public.
Supporters of the bill have called it an important correction that preserves the intention of the original bail reform law, while carving out exceptions for violent offenders, who they say have been unjustly released since the bail reform.
“I want to make sure that the public is protected from the possibility of re-offense when somebody is a danger,” Bradley said in an interview. “And that’s why for the 13 crimes that are listed in the bill, there’s the requirement that they go before a judge, as opposed to what’s happening now, which is pretty automatic.”
The bill received a ringing endorsement from Gov. Chris Sununu this month, who highlighted it in his State of the State address and urged lawmakers to pass it. And it is heading to the House after a rare 20-4 vote from the Senate, with four Democrats opposed.
But some civil rights advocates have said the bill goes too far, would lead to an increase in pretrial incarcerations, would cost the state too much, and would undermine the original intent even as crime rates have dropped in recent years.
Criticism of the bill has spanned the ideological spectrum; opponents include the American Civil Liberties Union of New Hampshire and Americans for Prosperity New Hampshire.
“We understand there are concerns and we are happy to work to find a compromise that works for all parties,” said Ross Connolly, deputy state director of Americans for Prosperity of New Hampshire, in a statement. “Unfortunately, many of the proposals we have seen in the Legislature go too far in the opposite direction. We do not need to use a stick of dynamite to address a problem that can be solved with a scalpel.”
A turbulent history
New Hampshire’s original bail reform bill was rooted in a basic goal: to reduce the number of people who are incarcerated before their trial because they can’t pay bail.
In 2018, a coalition of Republicans and Democrats passed a law intended to meet that goal. It was signed by Sununu with fanfare.
The new law required bail commissioners to take into account an accused person’s financial situation when setting bail. At the same time, it empowered bail commissioners to deny bail for those that present a clear danger to themselves and others – a new designation in law.
Proponents said it would fix a system that had caused hundreds to wait in jail for their trials and lose housing and employment, even when later found not guilty. And they said that the new power for bail commissioners to take into account the dangerousness of a defendant would protect against the possibility of violent offenses.
But soon after the law passed, police departments across the state rallied in opposition, highlighting cases in which crimes were allegedly committed by people who had been released on bail. The law, police representatives said repeatedly, had failed to meet its promise of keeping dangerous individuals off the street.
“There is ample evidence of cases where people have been shot at, stabbed, child predation has occurred, and more, and the perpetrator was released on personal recognizance bail,” said Chief John Bryfonski of the Bedford Police Department at a hearing for the bill in January. “…This is not about money; it is about safety.” Bryfonski did not provide specific data in support of the claims.
Bradley himself has changed his position. Back in 2018, he voted for the bail reform law. But the mounting complaints and examples from law enforcement prompted him to bring forward a legislative change that would explicitly carve out violent crimes and certain misdemeanors from the new system.
“I would say that the way it’s been implemented has not been the intent that we were sold on the bill, which was to allow people of modest means to have access to bail,” he said. “The way it was operating was that people that were charged with violent crimes were being released.”
Despite the concerns, opponents of this year’s bill argue that the correction is an overreaction, driven by individual anecdotes from police departments but not rooted in data.
“The legislation as a whole is really based in fear, not evidence,” said Frank Knaack, policy director for the ACLU New Hampshire. “… What we’ve heard over and over again, from the bill’s proponents, both legislators and law enforcement: again, it’s just anecdotes and rhetoric. They’ve provided no data to show that this is truly a problem.”
Knaack and the ACLU have urged lawmakers to work with the court system to collect data on pretrial releases since the bail reform law passed, rather than relying on individual cases to declare the law has failed. In the meantime, Knaack noted, publicly available statistics suggest that crime has decreased in recent years in the state.
Between 2018 and 2020, statewide arrests for New Hampshire’s more serious crimes – from murder to manslaughter to rape to simple assault to burglary – dropped 22.6 percent, according to an ACLU analysis of data from the New Hampshire Department of Safety. Statewide arrests for a number of less serious crimes, including driving while intoxicated, disorderly conduct, trespassing, and “peeping tom” offenses, have dropped 20 percent in the same time period, the analysis found.
“While we can’t sit here and claim that bail reform was the cause of decreasing crime, the notion that the other side can say that somehow made our communities less safe is just not serious,” Knaack said.
And opponents argue that the changes made to non-felony offenses, such as the introduction of automatic detention for people who fail to appear a certain number of times, would punish lower-income people who may have missed court dates due to work or other hardships. Detaining them for up to 72 hours could cause them to lose employment and housing, the opponents noted.
“People don’t miss a court date because they’re trying to skip a court date,” Knaack said. “They miss a court date because they have child care responsibilities or transportation issues or employment issues. … By rearresting someone, incarcerating them and taking them away from their community, their family, their job – that has a spiraling effect that harms not only the individual but their family, their community, and taxpayers, ultimately.”
Bradley has a different view.
“This is kind of like three strikes and you’re out,” he said of the proposed new law. “I think that if you’re accused of something and you have a court date, you have a responsibility to abide by the provisions of the court date. And three failures, to me, is problematic.”
Critics have also pointed to high costs that could follow an increase in detentions under the proposed bill.
The New Hampshire Judicial Branch has not carried out an analysis of SB 294. But an earlier version of the law from 2021, SB 92, would have caused 3,000 more misdemeanor bail hearings per year, an attorney for the New Hampshire Judicial Branch testified this year.
Those additional hearings would cost the state $1.9 million per year, the attorney, Mary Ann Dempsey, testified.
But to Bradley, cost is not the most important consideration.
“What price do we put on safety?” he said at a hearing on the bill in January. “This is one of the core functions of what makes a civil society civil.”
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