One year after Gov. Kelly Ayotte signed a law to pare back the state’s bail reform efforts, both sides of the debate agree on one thing: More people are being held in jail.
The Coös County Department of Corrections has a 50% increase in people jailed since last year, Attorney General John Formella said Tuesday. In Merrimack County, the jail population has grown by 30%, Formella added.
To those who argue the past system allowed too many people to be released on bail, those numbers are a sign of success. But opponents of the bail reform rollbacks say the state is now holding too many people behind bars, and potentially unnecessarily disrupting their lives.
At a press conference Tuesday, Gov. Kelly Ayotte and Attorney General John Formella both praised the new law, much of which took effect in September, saying it will keep dangerous people from reoffending.
“There is an overall deterrent when you know that when someone commits a crime that they’re not gonna to be able to immediately get back out on the street and harm the victim again,” Ayotte said.
The American Civil Liberties Union of New Hampshire countered that the increased incarceration could have serious negative consequences for people who have not been convicted.
“Research shows that pretrial incarceration leads to job loss, breakdowns of families, and even severe health issues and death — all while someone is presumed innocent in the eyes of the law,” said Rachel Potter, policy associate at the ACLU of New Hampshire, in a statement Tuesday.
Signed in March 2025, House Bill 592 dismantled many of the state’s “bail reform” changes from 2018. Those changes, approved by then-Gov. Chris Sununu, attempted to reduce the number of defendants stuck in jail ahead of their trials due to their inability to pay cash bail. But police departments quickly railed against the new standards, which they said forced judges to release too many people with criminal histories, allowing them to potentially re-offend.
Fueled by criticisms of the state’s bail system by Ayotte during her 2024 campaign for governor, HB 592 made a number of changes. It laid out stricter rules for people charged with a list of serious offenses, from murder to assault to arson, requiring courts to hold those defendants in jail between their arrest and their arraignment. It repealed the fledgling magistrate system, in which the judicial branch appointed and trained attorneys to act as quasi-judges for the purpose of setting bail, in an attempt to address backlogs.
And most significantly, HB 592 lowered the standard of proof required for a judge to deny bail to a defendant. Prosecutors and police were previously required to present “clear and convincing” evidence that the defendant would be a danger to themselves or others if released; now, prosecutors must only show “probable cause.”
That same probable cause standard also now applies to the likelihood that a defendant will reoffend or fail to appear in court, based on past behavior.
In New Hampshire law, the standards to meet “probable cause” are not defined, but the threshold is generally understood as a test of “reasonableness” requiring judges to assess the “totality of the circumstances.” It is one of the easiest evidentiary standards for prosecutors to meet, falling below what is required for “clear and convincing evidence.”
New Hampshire’s adoption of the standard is relatively unique; only Virginia uses such a low standard for bail, according to a review by the ACLU of New Hampshire.
But to prosecutors, the low bar provides for necessary flexibility after an arrest.
“Prosecutors don’t have a lot of time to prepare for a bail hearing,” said Attorney General John Formella in an interview Tuesday. “They’ve got maybe a few hours — a day and a half at most. And so having more tools and having a better standard to work on, and having more focus on holding dangerous people (helps).”
Flanked by law enforcement at the Department of Justice building in Concord, Formella and Ayotte said the new process would protect victims of domestic violence from alleged perpetrators after an arrest.
Asked by a reporter about the 2025 murder-suicide in Berlin that police say was committed by a man who should have been denied bail, Formella said the new law could have prevented the tragedy.
And Formella said the new bail laws would give prosecutors additional power over defendants.
“If someone’s held pre-trial, there’s a lot more leverage for the prosecutor to negotiate a plea agreement and to make the trials happen faster,” he said in the interview. “… If they’re detained, if they’re actually incarcerated, they don’t have any incentive to put a trial off.”
Critics of the low evidence standard say the desire by defendants to be released from pre-trial detention and return to jobs or families could incentivize them to take plea deals even when the evidence for their charge is thin. Under the previous requirement of “clear and convincing” evidence of dangerousness to be denied bail, some of those defendants might have been able to return to their lives while mounting a defense, critics say.
Ayotte and other supporters of the bail reform rollback have characterized HB 592 as “turning back the clock,” and returning the state to the bail system before 2019.
But the law now is different from that era in two major respects. First, the cash bail system that dominated before the 2018 bail reform law is still largely vanquished. The 2018 law introduced the new requirement of “dangerousness” in an attempt to stop courts from holding defendants simply because they could not pay, and for all its changes, the 2025 law keeps that standard.
But second, the new, lower “probable cause” standard to hold a defendant pre-trial also did not exist pre-2018. Some opponents of the rollback argue that the new standard makes the current bail laws harsher for defendants than the pre-2018 laws did.
“Make no mistake: the bail reform law touted today by Governor Ayotte is anti-liberty, anti-due process, and is right now resulting in non-dangerous Granite Staters being jailed at taxpayer expense,” Potter said in her statement.
To Ayotte, the purpose of the rollback law is to stop a “revolving door” of crime. And she called it a rebuke of the bail reform effort that swept the state in 2018.
“Sometimes there’s a lot of national movements on issues that don’t fit New Hampshire,” she said. “… I think the lesson to be learned here is: Before you make changes, especially to important areas of criminal justice law, that you don’t precipitously do that. That you make sure that we’re really focused on protecting the public.”