The New Hampshire Senate has passed a bill to revise the state’s bail reform law, which was enacted in 2019 with the worthy goal of reducing the number of people held in jail before trial because they could not afford bail. It may well be that the change is needed, but be wary of legislative efforts that are, as it appears in this case, unencumbered by facts.
The bill approved by the Senate and sent to the House for action would create a “rebuttable presumption” that people charged with any one of 13 violent felonies should be held without bail because they present a danger to the public. They could be detained up to 72 hours before going before a judge, who would hear arguments and decide whether to set conditions for release or hold them in custody before trial. The change would also affect people charged with lower level offenses by requiring that any defendant who failed to appear in court on three occasions in the previous three years be held without bail.
The bill’s chief sponsor, Sen. Jeb Bradley, R-Wolfeboro, told the New Hampshire Bulletin that he wants to “make sure that the public is protected from the possibility of re-offense when somebody is a danger.” In testimony before the Senate Judiciary Committee, Bradley cited a 2020 case in Nashua in which a defendant arrested for a domestic assault was freed on $200 bail and immediately returned to the victim’s house to beat and rape her. He asserted that there is a long list of such examples, although he did not elaborate. Bradley was unable to answer the question of what specifically in the current law prevented the bail commissioner from holding that defendant in custody. And when Sen. Rebecca Whitley, D-Hopkinton, suggested that more robust data collection was required before shifting the paradigm, Bradley demurred and denied that any paradigm shift was underway.
Chief John Bryfonski, vice president of the New Hampshire Chiefs of Police Association, also assured the committee that there was ample evidence of cases where people have been shot at or stabbed, or where child predation has occurred, with the perpetrator released on personal recognizance bail. However, the official record of his appearance at the committee hearing does not include any data backing up this startling claim.
From this, it could be inferred that this legislation is primarily driven by anecdotes and general complaints issuing from police chiefs and police unions. Frank Knaack, policy director for the American Civil Liberties Union of New Hampshire, contends that the bill is based on “anecdotes and rhetoric. They’ve provided no data to show that this is truly a problem.”
In this context, it is important to remember that police chiefs and police unions are interest groups just like any others that advocate on public policy issues. Their representations should be given weight, but not at the expense of gathering the data needed to evaluate their claims.
Especially problematic to our mind is the provision in the bill requiring that people who miss three court appearances in three years be detained. Do some defendants thumb their nose at the system? Certainly. But many low-income, low-level defendants miss appearances because of the complicated nature of their lives: Their transportation fell through, child-care issues arose on short notice, their work schedule changed. Holding these people without bail sets the stage for a cascading series of bad outcomes for them and society, including their losing housing and being unable to work or care for children.
There are ways to address these problems. Several states have been able to cut the rate of what are known as Failures to Appear by employing a robust system of timely reminders to defendants that they have a scheduled court date and that it is in their best interest to show up. Some employ algorithms to help judges make bail decisions. When carefully crafted and vetted for possible bias, these statistical formulations can reduce arbitrariness in bail decisions by better assessing defendants’ flight risk and the probability of their committing a violent crime while on release.
In 1987, then-Chief Justice William Rehnquist wrote in U.S. v. Salerno that “in our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” That limited exception ought not to be framed by anecdotal evidence but by the real thing.