House committee unveils new bail reform proposal, after clash with Senate

By: - November 15, 2023 5:03 am

New Hampshire House lawmakers are closing in on a sweeping new proposal for the state’s bail reform law after a testy standoff with the Senate last spring resulted in a breakdown. (Getty Images)

House lawmakers are closing in on a sweeping new proposal for the state’s bail reform law after a testy standoff with the Senate last spring resulted in a breakdown. 

Under a new framework announced last week, the House Criminal Justice and Public Safety Committee is proposing to meet the Senate part of the way on the Senate’s proposed list of 13 violent offenses that would be disqualified from speedy bail. 

Meanwhile, the committee is suggesting a broad array of changes to how the state administers and tracks bail, including a new way to pay bail commissioners and a new system to share information about bail violators.

“We’ve been along a long, tough road getting to some things that we’ve agreed on,” said Rep. David Meuse, a Portsmouth Democrat, during a hearing last week.

The 2018 bail reform law sought to reduce the number of people in the state that are held in jail before their trials solely because they don’t have the money to post bail. The law requires bail commissioners and judges to assess if a person is a danger to the community or to themselves before granting bail. In the intervening years, Republican lawmakers and law enforcement officials have raised concerns with the reforms, arguing that too many people have been released as a result and have reoffended.

Defenders of the law have pointed to falling arrest rates in the state as a way to show that crime has not increased, and they have argued that police and prosecutors fail to use the tools to hold people considered dangerous.

But even with Republican control of the House and Senate, negotiations have been fraught. In an effort to pare back the state’s 2018 bail reform law, Senate Republicans have proposed withholding immediate bail to people charged with any of 13 specific offenses, which include felony charges of homicide, sexual assault, robbery, and kidnapping, as well as misdemeanor charges including domestic violence and stalking. Under the Senate proposal, a person charged with one of those offenses would not be allowed to see a bail commissioner at night or over the weekend, but would instead be held in jail until their arraignment before a judge. 

Last week, the House committee agreed to that approach, but only for the felonies listed. That tweak would mean those charged with homicide; first-degree assault; second-degree assault; felonious sexual assault; aggravated felonious sexual assault; human trafficking; possession, manufacture, or distribution of child sexual abuse imagery; kidnapping; and robbery would be held without seeing a bail commissioner until their arraignment. Those charged with misdemeanor domestic violence or stalking would still be allowed a hearing before a bail commissioner.

The House committee’s proposal – which will be hammered out this week and added as an amendment to a retained bill – comes after the committee held months of discussion and testimony following a contentious meeting with the Senate last spring. During a “committee of conference” meeting of Senate and House negotiators over a bail reform bill in June, House members said they were not willing to adopt the Senate’s proposal around the 13 offenses, prompting sharp words from Sen. Sharon Carson, a Londonderry Republican, and Sen. Donna Soucy, a Manchester Democrat. 

At the time, House Criminal Justice Committee Chairman Terry Roy, a Deerfield Republican, raised concerns that a blanket denial of immediate bail could result in someone accused of an offense being held for two or three days before being seen by a judge, a possibility he noted could cost them their job. 

Roy instead proposed that his committee continue to work over the summer on five bail-related bills it had retained last spring, and to use the time to come up with a more comprehensive solution. He unveiled the framework for that solution last Thursday; in a show of hands, all present members of the committee indicated they would agree to it.

The House framework will be finalized and voted on by the committee this week. But it also includes a number of other proposed updates to the law.

A change in how bail commissioners are paid

Throughout the bail reform debate, the role of bail commissioners has been central. The trained, quasi-volunteers answer phone calls at all hours of night and on weekends to meet with recently arrested defendants and determine whether they can be released before a judge can hear them at their arraignment and set formal bail.

That role is critical to allow accused people to return to their lives quickly after an arrest if they are determined to not be a threat to themselves or others. But bail commissioners have testified that they often do not receive the $40 they are supposed to be paid per hearing they oversee. That fee is currently required to be paid by the defendant, who often does not have it available.

The House proposal would change that arrangement and require the judicial system to pay bail commissioners their fee, rather than the defendants. The courts would then be responsible for recouping the $40 from the defendants. Under the proposal, bail commissioners would be paid by the courts on a monthly basis.

The proposed overhaul would also increase the fee paid to the commissioners per hearing from $40 to $50. 

New ways for crime victims to be informed

The House’s bail overhaul would increase the awareness that victims of crimes have about the bail process. 

The proposal would require police departments to notify alleged victims if a defendant is about to be released on bail – whether by phone call, written notice, or visit. It would allow the departments to also satisfy this requirement by informing victims ahead of time if they think it is likely the defendant will be released.

And it would change state statute to allow the victims to testify to the court during the arraignment process, in order to provide additional input over whether the defendant should be released. 

The House proposal would also require bail commissioners to distribute literature to defendants detailing local resources to address homelessness, substance use disorders, and mental health problems. 

A new system to track people out on bail

As New Hampshire law enforcement agencies have raised concerns about the 2018 bail reform changes, one complaint has centered around the difficulty in obtaining information about people who are arrested. Because there is no standardized reporting process, it is often difficult for police departments to know if a defendant is already out on bail for another alleged crime in a different community.

The House proposal would add in a requirement that the New Hampshire State Police develop and implement an electronic system to share a person’s bail status with all local police departments. That would allow police departments to see if a person they arrested was out on bail for a more serious offense, which could affect the bail commissioner’s decision over how to release them.

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Ethan DeWitt
Ethan DeWitt

Ethan DeWitt is the New Hampshire Bulletin’s education reporter. Previously, he worked as the New Hampshire State House reporter for the Concord Monitor, covering the state, the Legislature, and the New Hampshire presidential primary. A Westmoreland native, Ethan started his career as the politics and health care reporter at the Keene Sentinel. Email: [email protected]

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