A year ago, state lawmakers, nudged by national judicial reform efforts and the state court system’s own revisiting of how bail is determined in New Hampshire, passed Senate Bill 556, the Criminal Justice Reform and Economic Fairness Act.
Signed by Gov. Chris Sununu, the law’s primary purpose is to make clear judges have the leeway to release people charged with a crime, pending arraignment, without requiring bail. The idea is that those lacking the financial resources to post bail ought not to be jailed under similar circumstances where someone wealthier would walk free. It’s an issue of fairness.
We noted prior to the governor signing the bill that “The change in law would effectively tip the scale: from assuming everyone accused of a crime ought to be locked up, unless they have the money to secure a bond, to assuming they should be released unless there’s a valid reason to hold them.”
Prosecutors and some police officials warned that tip would be too far in the direction of freeing accused criminals who should be held, putting the public’s safety at risk. They were particularly vocal about wording in the law saying a decision on whether to hold a person ought not to be made based on evidence of substance abuse (or homelessness).
They’ve since pointed to specific examples of released defendants committing crimes when they would have been behind bars. Tuftonboro Police Chief Andrew Shagoury, who as president of the N.H. Association of Chiefs of Police worked on the legislation, has faulted the implementation and training of court staff, saying they’ve been too lenient in determining whether someone can afford bail.
Those might be seen as typically tough-on-crime, conservative views. But they speak to a common dynamic: Worthwhile reforms often don’t go perfectly and need to be revisited. In this case, those on all sides of the issue recognized this. Sununu listened to law enforcement and called for action. Democratic Sens. Martha Hennessey, whose district includes Charlestown, and Dan Feltes of Concord crafted legislation to address several points of contention with the reform measure. Even the ACLU of New Hampshire, which pushed for the reform a year ago, signed onto the new bill, Senate Bill 314.
The tweaks include changing the language on personal recognizance so it doesn’t steer judges away from considering addiction or homelessness, but notes those should not be the sole reasons for holding someone.
Rather than a laundry list of other specific factors a judge might consider regarding whether the person poses a danger, the new language urges consideration of “all relevant factors bearing on whether the release will endanger the safety of that person or the public.”
And it allows the bail commissioners’ fee to be waived for those who cannot afford it.
The changes came via recommendations from a bail reform commission set up under last year’s law, and were further amended after objections from Shagoury and Sullivan County Attorney Marc Hathaway.
Sununu has expressed support for the measure. As he noted, it is another step in the right direction. No system will ever be foolproof in both completely protecting the public and upholding the presumption of innocence and fairness to which our judicial system is bound. But we’re getting closer to striking the right balance.