More than a year into the debate over a major reform to New Hampshire’s bail system, no comprehensive data have been collected on the law’s effects, including on a key question: whether large numbers of defendants are failing to appear for court — and, if so, why.
Missed court dates can delay cases, create extra work for court staff and law enforcement and, depending on the circumstances, lead to serious consequences for the defendant, including arrest on a bench warrant or a new criminal charge of bail jumping. Some law enforcement officials claim that’s occurring much more frequently since the bail reform took effect at the end of August 2018, leading to what one police chief called a “revolving door” that fails to hold people accountable.
Advocates of the reform, meanwhile, question those claims. And in the absence of rigorous statistical evidence, the anecdotal observations and limited data offered by various participants in the debate do not paint a clear picture of what is happening on the ground.
“I feel we have to have data to really understand the impacts, to compare how things are today, as opposed to how they were pre-bail reform,” said N.H. Sen. Melanie Levesque, D-Brookline, who is chairing a commission studying issues related to bail.
In addition to the commission, established by legislation this summer, other efforts to understand the law’s impacts are underway. Republican Gov. Chris Sununu has been discussing the issue with legislators of both parties, according to a spokesman. And sometime next year, a grant-funded study could produce a more comprehensive analysis of failures to appear and another common question, crimes committed while on release, for which there is a similar lack of data.
A muddled picture
Bail is the mechanism by which a person charged with a crime is released pending further court proceedings. Because defendants are legally innocent until proven guilty, freedom before trial is supposed to be the default, restricted only as necessary to protect public safety and make sure people show up for court.
One common restriction is cash bail — conditioning a defendant’s release on his or her ability to post a specified sum of money. In theory, the prospect of forfeiting the money is supposed to incentivize a return to court. But in many parts of the country, cash bail often means jail for defendants who can’t afford it. Criminal justice reformers have increasingly targeted the practice, calling it unjust.
New Hampshire’s 2018 bail reform law essentially did two things. It prohibited cash bail in amounts that keep people incarcerated solely because of their inability to pay. And it explicitly authorized judges to detain “dangerous” defendants without bail, something they had not been able to do in most cases.
Police officials and prosecutors in some parts of the state say they’re seeing more defendants miss court hearings since the changes took effect, with one-third or more failing to appear.
“It’s more common than it’s ever been,” said Franklin Police Chief David B. Goldstein, who chairs the legislative committee of the N.H. Association of Chiefs of Police. “I mean, I’ve been in this business for 40 years.”
Last month, WMUR reported that police prosecutors in Manchester — who handle misdemeanors and violations — estimated the failure-to-appear rate at arraignments at 30 percent. Heather Hamel, the Manchester Police Department’s public information officer, said in an email to The Sentinel that she was unable to verify that statistic. “Unfortunately we are not able to track all that data,” she wrote.
The Concord Monitor reported in October that prosecutors in Grafton County said 30 to 40 percent of defendants weren’t showing up. Grafton County Attorney Martha Ann Hornick did not respond to a request for comment on that number Thursday.
Meanwhile, limited data sets analyzed by the N.H. Public Defender program and University of New Hampshire law professor Albert “Buzz” Scherr seem to point in the other direction.
The public defender’s office looked at its felony and misdemeanor cases before and after bail reform. Statewide, 7.7 percent of cases had to be closed in the first nine months of 2017 because a client missed a court appearance after arraignment and didn’t show for the next 30 days. That figure rose slightly, to 9.8 percent, for the same period in 2019.
Scherr — who drafted the bail reform law — surveyed a few hundred hearings from the first months under the new law. The limited data showed roughly 90 percent of people were showing up, according to his analysis.
But lawmakers and the judiciary need more comprehensive data to guide their policy decisions, Scherr said. “At this point, they’re relying on anecdote and the likes of me and other people … who are trying to gather at least partial data,” Scherr said. “But we know it’s partial data.”
It is also unclear how amendments to the bail statute in June and a recent N.H. Supreme Court ruling, which held that unaffordable cash bail is acceptable when deemed necessary to ensure someone’s appearance, will affect appearance rates.
Better data could come out within the next year. With a $45,000 federal grant, the state has commissioned an analysis from the Pretrial Justice Institute, a Maryland-based organization that works to advance pretrial reforms.
The research will look at pretrial populations at county jails before and after the 2018 reform law, including missed court dates and rates of reoffending while out on bail, according to John Clark, the institute’s senior manager for technical assistance.
“That will give us a very good indication to be able to say with some certainty whether these failures to appear that are being experienced are just anecdotal, or whether they’re backed up by data,” he said.
Failures to appear are not a major problem for Monadnock Region courts, according to local clerks, though they can create extra work for court staff and police.
“Missed Court dates happen on a daily basis. I wouldn’t characterize them as a ‘problem,’” Larry S. Kane, the clerk for the 8th Circuit Court District Division in Keene and Jaffrey, said in an email. “People miss Court dates for many reasons. Not all are simply people ignoring Court orders. Some may be weather related, health related and even simple misunderstandings.”
There seems to have been an “uptick” since the bail reform law, Kane said, “but I do not have numbers to substantiate that.”
Deliberately skipping court can have serious consequences, including arrest on a bench warrant and a new criminal charge. “Quite honestly, if people don’t show up, our remedy is to charge them with bail jumping,” said Cheshire County Attorney D. Chris McLaughlin.
Bail jumping on a felony-level case is itself a felony. “That tends to get their attention,” he said. He said he can think of roughly 10 to 20 such cases this year.
‘Variety of reasons’
Colin Doyle, a staff attorney with the Criminal Justice Policy Program at Harvard Law School, said there has not been extensive research into why people miss court.
“The truth is that it’s a little bit understudied as an issue,” he said. “What we do know, though, is that people don’t show up for a whole variety of reasons.”
That can include factors like forgetting a court date, lacking transportation or having childcare or work responsibilities, not simply trying to evade prosecution, he said. Homelessness or a substance use disorder can also get in the way.
One proven method for reducing failure-to-appear rates, Doyle said, is an automated call or text to remind defendants of upcoming court dates, similar to a doctor’s office calling a day before your appointment. Studies of programs in Multnomah County, Ore., and New York City found significant drops in missed court dates.
New Hampshire plans to pilot a text reminder program for criminal cases next year, according to Carole Alfano, a spokeswoman for the judicial branch. The judiciary rolled out a similar program for divorce and parenting mediations in mid-2018, resulting in a 40 percent reduction in failures to appear among indigent parties, according to an April 2019 news release.
Additional recommendations could come out of the commission Levesque chairs, which met for the third time Friday.
“I believe that out of this commission we are going to get some good solid answers,” she said.