Bail reform commission begins; stakeholders speak freely

A new 15-member commission to revise controversial bail reforms began its work Friday, Oct. 18, 2019, with stakeholders offering frank views about their differences. Here, Circuit Court Administrative Judge David King speaks to the group while Manchester Police Lt. Timothy Patterson, right, listens.

CONCORD — The first meeting Friday of a high-powered commission created to craft the next compromise on bail reform revealed it is likely to be more difficult to achieve consensus this time around.

The 15 members agreed to name State Sen. Melanie Levesque, D-Brookline, as chairman and State Rep. David Welch, R-Kingston, as vice chairman and they will next meet on Nov. 22.

But as the stakeholders spelled out what they want out of this group going forward, lingering disagreements emerged.

Randy Hawkes, executive director of the New Hampshire Public Defender’s Office, said there should not be any systemic changes until the panel gets better information as to how big a problem there is today.

“I can understand the frustration of people dealing with this on the front line, but until we have a handle on the scope of the problem I don’t think we can make reasonable recommendations to the Legislature,” Hawkes said.

Strafford County Attorney Thomas Velardi said this shouldn’t be an excuse for inaction.

Changes Velardi champions include giving judges the power on the spot to review a defendant’s bail history when deciding whether to jail someone for a new crime.

“I don’t want to see this entire exercise derailed because we can’t get the data,” Velardi said.

Rockingham County Corrections Superintendent Steven Church said the population of his jail has grown since the first bail reform passed in 2018.

“The misnomer that judges are releasing everybody after arraignment isn’t borne out by our data,” Church said.

Franklin Police Chief David Goldstein, representing the New Hampshire Association of Chiefs of Police, begged to disagree.

Goldstein said he’s speaking for those “in the trenches” who watch people getting out without cash bail only to offend again soon after.

“Our failure-to-appear rate is 58 percent,” Goldstein said.

“I learned a long time ago that a camel is a horse designed by a committee and I hope we aren’t going to be designing a camel,” he said.

Albert “Buzz” Scherr of the UNH School of Law and representing the American Civil Liberties Union, said past changes have worked as intended.

The number of people kept in jail because they can’t afford bail, even when less than $100, is down, he said.

“I think there are tweaks to be made to the statutes as written,” Scherr said.

Manchester Police Lt. Timothy Patterson said in his remarks more than minor adjustments are needed.

“We have a serious problem in Manchester. It appears we are operating a catch-and-release program,” he told the commission.

“They get personal recognizance bail and they are out on the street committing additional crimes while the officer is making up the report on their release,” Patterson said.

Some members of the commission privately confided their work soon could be eclipsed by Gov. Chris Sununu, who earlier this month announced plans to name his own working group to come up with changes.

At the time, Sununu said he still supported the idea of not incarcerating someone just because they can’t afford to pay cash bail. But, he said, he heard from police and Manchester officials that since the adoption of reforms too many are being released only to offend again.

Manchester Police Chief Carlo Capano quietly sat in the back of the State House committee room Friday and watched the give and take.

“This will be an interesting process,” Capano said after the meeting. “You can already see the factions staking out their hard positions. I am here advocating for the victims who wonder what we are doing when someone who shouldn’t be is back on the streets.”

Chairman Levesque said she looks forward to hearing from bail commissioners, many of whom struggle to stay in the field as they get only $40 per case and a new law now allows the indigent to not pay.

Also expected to testify are those who run bail supervision programs such as in Strafford County, which closely monitors those who are released to better assure the public is safe.

Bail is intended to make sure criminal defendants appear in court. When someone is accused of a crime, a judge or bail commissioner sets a cash bail or chooses to release a defendant without a payment on personal recognizance. The bail reform laws aim to release people who are not dangerous, but who cannot afford to pay cash bail — and in so doing spare taxpayers the expense of housing these people in jails while they await trial. If a judge or bail commissioner decides a defendant is too dangerous to let out of jail, the defendant can be held without bail.