This week, a bipartisan group of New Hampshire Senators voted to needlessly incarcerate thousands of Granite Staters--and at a staggering financial cost.

This week, a bipartisan group of New Hampshire Senators voted to needlessly incarcerate thousands of Granite Staters--and at a staggering financial cost. 

Their argument is simple – bail reform has made our communities less safe, and thus needs to be rolled back. In committee hearings and before the media, police chiefs and proponents peddled fear, sharing scary stories about people on bail allegedly committing more crimes.  

But there’s just one problem: the data says otherwise. 

As we should have learned long ago – from the war on drugs, to mandatory minimums, to zero tolerance – policies that rely on fear rather than fact can have devastating human and economic consequences. The bill moved forward by the Senate yesterday, SB 294, is no different.  

SB 294 mandates incarceration of certain people before charges are even filed against them based only on unsubstantiated allegations that they committed one of 13 arbitrarily selected offenses. It would also force judges to jail people before trial if they failed to appear for a court date in the past, regardless of whether such failure was unintentional (like a lack of transportation, child care responsibilities, or work requirements). 

Despite the fear-based rhetoric and limited anecdotal stories from some law enforcement leaders, proponents of this legislation have proved no data to support their claims that the current bail system makes New Hampshire less safe. In fact, crime rates in New Hampshire have decreased over 14 percent since the implementation of bail reform.   

Here are the facts from Manchester and Bedford, from where local law enforcement leaders testified to the legislature in support of this bill: 

  • In Manchester, between the first year of bail reform and the most current year of complete data (2018-2020), Group A crimes were down 9.6 percent and arrests were down 16.6 percent. Group B arrests were down 30 percent (the state only provides arrest data for the limited number of Group B offenses).  
  • In Bedford, between 2018-2020 Group A crimes were down 29.5 percent and arrests were down 19.5 percent. Group B arrests were even.  

Proponents of this bill also forget to mention another important fact: current law already allows the court to detain any individual before trial if they are a danger to the community.  

Let’s also not forget the serious constitutional concerns. The U.S. Supreme Court has made clear that individuals cannot be detained pretrial without bail unless there is a basis of dangerousness, and that dangerousness must be proven by “clear and convincing evidence.” After an initial hearing in which the prosecution may prevail with calling actual witnesses, this bill instead presumes dangerousness based exclusively on the charge against a person. In addition, in certain cases using a presumption against the defendant, the legislation mandates the incarceration of individuals pretrial unless the individual proves a negative – that they are not dangerous. Putting the burden of disproving dangerousness on the defendant and creating a presumption of pretrial detention raises constitutional concerns. 

And it gets worse. This legislation would also result in the pretrial incarceration of people whose underlying charge does not carry jail time if convicted, by allowing pretrial detention for individuals charged only with a class B misdemeanor. The definition of a class B misdemeanor is an offense that carries no jail time. This bill risks imposing a harsher penalty on someone presumed innocent than allowed under the law if that person is subsequently found guilty.  

Another component of this legislation is that it mandates pretrial incarceration for failing to appear to a court date, regardless of the reason. Under the legislation, individuals would be incarcerated pretrial if they have failed to appear three or more times in the previous three years or twice in the present case. This legislation ignores the fact that four of the five top reasons that individuals miss their court date have nothing to do with the case or public safety. They are: child care, transportation, employment requirements, or someone simply forgot.

In many cases, these failures to appear could be reduced by simply embracing "reminder models" that have been effectively deployed in other states, including text and call reminders. These models have reduced failures to appear and have saved states hundreds of thousands of dollars in unneeded jail and warrant expenses. New Hampshire should avoid this one-size-fits-all approach that risks needlessly re-filling our jails with pretrial detainees. 

This legislation also creates a new and unnecessary financial burden on New Hampshire. During the Senate Judiciary hearing on SB 294, the New Hampshire courts estimated that it would require up to an additional $1.9 million each year to implement this law, including hiring additional judges and support staff. And, that figure does not include the unknown incarceration expenses that local jails would incur to house potentially thousands of additional people each year at a cost ranging between $105 and $125 a day per person. Lawmakers should focus our limited tax dollars on investments that will actually make our communities safer and more just, like housing, transportation, and mental health and substance use treatment.  

Pretrial detention has a devastating human toll. Even for a short period of time, it increases the likelihood of innocent people pleading guilty to a crime, loss of employment, income, and housing, and traumatic family disruption. This legislation would subject potentially thousands of Granite Staters to these devastating collateral harms.  

We urge legislators to look at the data and oppose SB 294. Let’s keep bail decisions in the hands of the court.