The last two weeks have been important in our work to preserve New Hampshire's bail reform laws. Two weeks ago, the House Criminal Justice and Public Safety Committee voted to retain SB 252, the last of the six regressive bail bills filed this session. SB 252, like the other five that were also retained by the same committee, would have led to the needless incarceration of thousands of Granite Staters each year (and at a staggering financial cost). While the Senate could still try to amend regressive bail legislation on to another bill, at this point all the stand-alone bills are held this session.
And, just yesterday the Senate Judiciary Committee voted unanimously to recommend passage of HB 46, which would establish a committee to study the use of court magistrates throughout the state court system to supplement or replace the current bail commissioner positions. Why is this important? One of the main arguments raised by those seeking to roll back bail reform centers around the fact that bail commissioners, who are not trained judges, make the initial bail determination and release people who pose a danger to the community. But, there has been no data provided to show that this is in fact happening, particularly on a scale that would warrant major revisions to the bail statute. If this is a true concern of bail reform opponents, then HB 46 would create an opportunity to study the bail commissioner system and the potential benefits of replacing bail commissioners with magistrate judges. This legislation enjoys broad bi-partisan support.
Now that we have gotten through these recent updates, let’s discuss the bigger questions: what is bail reform and why are some trying to repeal it?
Four years ago, New Hampshire took a major step toward ending wealth-based incarceration. More commonly known as bail reform, it has kept thousands of people from being needlessly incarcerated and saved millions of tax dollars. And, it has done all of this without harming public safety.
Despite bail reform’s success, some police and politicians almost immediately began work to undo it. Along the way they have misrepresented facts and exploited crime victims.
First, some background on bail. Bail is the process that determines whether someone accused of a crime is incarcerated before their trial. It is supposed to serve two purposes – to ensure that someone accused of a crime will appear in court and to ensure that people who pose a danger to the community are detained even though they have not been convicted of a crime.
Unfortunately, in New Hampshire, much like the rest of the country, bail turned into something completely different. Until bail reform in 2018, thousands of Granite Staters were incarcerated pre-trial each year not because they were a danger to their community, but simply because they could not afford to pay their bail.
Bail reforms that began in 2018 made two major changes. They limited the ability to incarcerate people simply because they could not afford their freedom and ensured that anyone accused of a crime could be incarcerated pre-trial if they were found to be a danger to the community. Previously, people accused of certain crimes could not be incarcerated pre-trial even if they were a danger to the community.
We urge all legislators, including those seeking its repeal, to look at the facts. Let’s look at the three misleading arguments raised by those seeking to roll back bail reform.
Misleading argument one: Bail reform caused an increase in crime. This is blatant misinformation. According to the NH Department of Safety’s own data, crime and arrests are down substantially since bail reform. For example, for Group A offenses – the largest and most serious offense category – crime is down over 18 percent since bail reform.
Misleading argument two: Bail reform limited police and prosecutors’ power to incarcerate some dangerous people pre-trial. Again, this is blatant misinformation. Under current law, anyone can be held pre-trial if they are a danger to the community. There are also multiple ways to hold someone pre-trial if they violate the terms of their release. In addition, if a prosecutor disagrees with a decision to release someone, they can challenge that decision in court and that motion “shall be determined promptly.” Unfortunately, it appears that these facts were conveniently ignored when opponents attempted to blame bail reform for some recent horrific crimes.
Misleading argument three: Bail commissioners, who are not trained judges, make the initial bail determination. If this is a true concern of bail reform opponents, then I look forward to their support for legislation to replace bail commissioners with magistrate judges. This legislation, which enjoys broad bi-partisan support, would ensure that trained judges make all decisions surrounding bail without undermining individuals’ liberty.
Since the rhetoric from bail reform opponents is easily dismissed by the facts, we can only speculate as to their real reason for working to roll it back.
Until bail reform, police had the power to arrest people who were unhoused, people experiencing mental health or substance use needs, and other poor, marginalized community members knowing the individual would likely be incarcerated for months or longer while they awaited trial because they could not afford bail. They also know that when people are incarcerated pre-trial, they are more likely to plead guilty to a crime regardless of their guilt or innocence. As a result, police could sweep streets and neighborhoods of those they did not want to see. It was an easy out for police and politicians alike, despite the harm it caused to those unnecessarily incarcerated, mostly the poor, and the enormous financial cost of pre-trial incarceration that was billed to taxpayers.
For years, legislators have faced a relentless assault of misinformation and fear from opponents of bail reform. With the freedom of thousands of granite staters on the line, we urge lawmakers to remain focused on the facts. For the safety of our communities, to reduce needless incarceration, and to save taxpayer dollars, bail reform must not be repealed.