Smart Justice

We cannot incarcerate our way out of the opioid epidemic in New Hampshire, especially by using outdated, unjust, and expensive mandatory minimum sentences.

Make no mistake: this bill is anti-liberty, anti-due process, and will result in thousands of non-dangerous Granite Staters being jailed - all at high taxpayer expense and despite being presumed innocent in the eyes of the law.

Make no mistake: this anti-liberty and anti-due process bill will harm Granite Staters. The courts should have the power to determine our freedom - not police or politicians.

From the perspective of freedom, justice, and due process, we are extremely alarmed by Governor Ayotte’s inaccurate and misleading statements on bail reform and her expressed desire to take away the freedom of thousands of Granite Staters who are presumed innocent in the eyes of the law.

On September 30, 2025, the ACLU of New Hampshire filed a class action lawsuit challenging New Hampshire’s law against “loitering or prowling,” which makes innocent behaviors illegal—like standing, walking, resting, or congregating in public—based on the mere hunch of a police officer. This lawsuit follows a two-year investigation conducted by the ACLU of NH into how the loitering law has been enforced in New Hampshire. According to the ACLU of NH’s filing, the law is unconstitutional because it violates the Fourteenth Amendment’s due process provisions and the Fourth Amendment’s right against unreasonable seizures. Hundreds of individuals are charged under this law each year in New Hampshire and are then subjected to judicial proceedings in which they often are not entitled to counsel. Based on data from the New Hampshire court system, for the twelve years from January 1, 2013 to December 31, 2024, approximately 2,364 cases were filed in which a loitering violation was charged—an average rate of approximately 197 filed cases per year. New Hampshire’s loitering law is an outlier: it appears that New Hampshire is only one of five states (including Arkansas, Delaware, Florida, and Georgia) with this type of loitering law. Just last year, the Delaware Attorney General agreed to not enforce Delaware’s loitering law because of constitutional concerns. Loitering statutes and other vagrancy laws have historically been used in the United States to discriminate against marginalized communities. New Hampshire’s law has broad prohibitions on innocent behaviors that have allowed police to target and arrest those deemed “undesirable,” while leaving Granite Staters guessing as to what behavior is allowed and what is not under the law. Police in New Hampshire have repeatedly used this law to harass and punish unhoused people. From July 1, 2021 to December 31, 2024, there were approximately 89 cases disposed of in circuit court in which the Manchester Police Department charged a loitering violation. Of those 89 cases, at least 50 involved unhoused individuals (totaling approximately 56% of cases), despite unhoused people making up only around 0.5% of Manchester’s population. Similarly, in Concord, during the two-year period from July 1, 2021 to June 30, 2023, there were approximately 23 cases disposed of in circuit court in which the Concord Police Department charged a loitering violation. Of those 23 cases, around ten cases involved unhoused individuals (totaling approximately 43% of cases). Many examples of unhoused individuals charged under this law by the Manchester Police Department include those who were outside a corporate office building, walking in an alleyway, sleeping in front of an entryway of a church, and sleeping near the stairs of a parking garage. The unhoused community has been aggressively targeted by local governments since the United States Supreme Court’s decision in City of Grants Pass v. Johnson, which held that the Eighth Amendment’s Cruel and Unusual Punishments clause did not prevent an Oregon city from enforcing an ordinance restricting camping in public spaces against unhoused individuals, even where they had no alternative place to sleep. In the year that followed the Supreme Court’s decision, cities across the country introduced over 320 bills criminalizing homelessness, nearly 220 of which passed. New Hampshire was no exception, with the City of Manchester enacting and enforcing a new camping ban. Within the last year since the Grants Pass decision, from July 1, 2024 to June 30, 2025, there were approximately 243 cases filed in which a loitering violation was charged—a 60-case (or over 32%) increase from the prior year. This targeting of the unhoused has also occurred at the federal level. On March 28, 2025, President Donald J. Trump issued an Executive Order which, among other things, directed “the removal and cleanup of all homeless or vagrant encampments and graffiti on Federal land within the District of Columbia.” On July 24, 2025, President Trump issued an executive order that seeks to “fight[] vagrancy” by “[s]hifting homeless individuals into long-term institutional settings for humane treatment through the appropriate use of civil commitment.” The order also instructs federal agencies to reward cities and states that “enforce prohibitions on urban camping and loitering.”