Senate drops bail reform rollback bill after apparent drafting errors

The New Hampshire Senate abandoned a bill intended to pare back sections of the 2018 bail reform law Thursday, in a surprise turnaround brought about by drafting errors in the final legislation.

Voting unanimously, senators opted to table the legislation, House Bill 1476, which would have imposed stricter requirements around jailing people charged with crimes while out on bail before their first court date.

The latest version of the bill was the product of frenzied House and Senate committee of conference negotiations last week that stretched to the end of legislative deadlines – and beyond. At one point, Senate President Chuck Morse, a Salem Republican, “stopped the clock,” a legislative maneuver that allowed negotiators to finish just beyond the 4 p.m. May 19 deadline.

But opponents and proponents said the final compromise contained major flaws. Addressing his colleagues Thursday, Sen. Jeb Bradley, one of the key proponents of pulling back bail reform, cited those flaws and called for the Senate to table the bill.

“There became issues that we thought had been resolved, but as more eyes looked at it after the deadline, we realized that there were consequences in the bill that – I just can’t ask the body to vote for it,” said Bradley, a Wolfeboro Republican. 

In an earlier interview, Bradley said the decision to pull the bill had been made Tuesday. 

The final version of the bill would have required any person who was arrested for a separate offense while out on bail for a felony charge be held in jail until a judge could arraign them. That approach differs from the current system, in which people arrested appear before a bail commissioner – regardless of their bail status – who may choose to hold or release them on bail based on an assessment of the danger they pose to themselves or the community.

The new approach would have required that those charged be held for up to 24 hours for an arraignment and new bail hearing. That would have increased to 36 hours on weekends, holidays, and when the person’s attorney was unable to attend an arraignment on the new charges.

And the new bail rules would have applied to people charged with misdemeanors too, including Class B misdemeanors, which are not punishable with jail time.Those offenses include vandalism, resisting arrest, possessing small amounts of cannabis or other drugs, and driving while intoxicated, If convicted, a defendant faces a fine of up to $1,200. 

Proponents of bail reform, including police unions, argued the bill’s pretrial detention mandates were necessary to reduce the number of people released on bail who later reoffend. But critics said the bill would unfairly jail people for low-level crimes that are not otherwise punishable with a jail sentence. 

House and Senate negotiators had appeared to reach a compromise last Thursday, but opponents quickly pointed to a problem. The final bill stated that people who are arrested for misdemeanors must be held in jail before their hearing – provided they had been charged twice previously. But it did not specify that those people must have been currently on bail when they were rearrested in order for the law to apply. 

The result of the omission, critics argued, could have jailed a person who’d been arrested for low-level Class B misdemeanor for a third time over the course of their life, even decades, whether or not they were on bail at the time of arrest.

Bradley cited that issue and others when announcing his decision to pull support for the bill Thursday. 

“The period of time for a look back for multiple offenses is too long,” Bradley said. “It is very open-ended on the misdemeanors that are included in the bill.”

Because of the late hour in the legislative process, the only way to make tweaks to the language Thursday would have been to get a two-thirds vote to suspend the rules, an unlikely scenario, Bradley conceded. The vote was met by disappointment from House Republican lawmakers who had worked on the bill.

“Unfortunately Granite Staters will have to continue to wait while repeat and violent offenders are let off again and again on cashless bail,” said Rep. Ross Berry, a Manchester Republican. “I look forward to taking this issue into the election in November, and it is my sincere hope that the composition of the State House changes to one that will prioritize victims and our communities over criminals and lawlessness.”

But the American Civil Liberties Union of New Hampshire, a longtime proponent of the 2018 bail reform and a key critic of the rollback bill, cheered the outcome.

The ACLU and Americans for Prosperity New Hampshire had both argued against the bill, arguing the mandatory jail time would erode due process, increase incarceration, and disrupt people’s employment and housing statuses.

“HB 1476 – which would have substantially rolled back our state’s bail reform laws – ran counter to decades of research that show, in the vast majority of cases, that jail is likely the most harmful option during the pretrial stage,” said Frank Knaack, ACLU New Hampshire policy director, in a statement. “While there is no silver bullet to ending harm in our communities, there are multiple approaches to building safer communities that are supported by evidence – from funding substance use treatment and destigmatizing drug use to ensuring housing and a living wage.”