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.

They get roused at all hours of the day and night for a straight $40 fee.

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They have about a 50-50 chance of getting paid.

And bail commissioners are now shouldering the fallout of the 2018 bail reform law, which has made it more difficult to jail people, especially indigent people, before trial.

“The bail commissioners get blamed for letting them out, but we’re just following the law,” said Marlene Gamans, a former town clerk at Goffstown who started the job as bail commissioner once she retired.

“The cops, they get (mad) at me and I say ‘That’s the law,’” said Dan O’Rourke, a firefighter who sets bail in the Manchester area.

The bail reform law has brought focus on the low-profile job of bail commissioner, independent contractors who work on behalf of the state judicial system. The state court system provided a list of 115 people who are bail commissioners.

They are the first judicial representative a person sees after an arrest. They sit across from a defendant, either at a police department or county jail. And they decide whether the person will spend a night, perhaps a weekend, in jail or whether they are safe enough to let out on the street.

Police, city officials and prosecutors say the new bail law has let dangerous and repeat offenders out on the street; civil libertarians and defenders of the law have started to question some of the decisions made by bail commissioners.

“Bail commissioners have discretion to release or to hold defendants pending trial in accordance with the law, including detaining a defendant they determine is dangerous,” said Superior Court Chief Justice Tina Nadeau in an email earlier this month.

“It’s not the law (that’s at fault),” UNH Law professor Albert “Buzz” Scherr said, “it’s the way it’s being applied. It’s the bail commissioners they need to change.”

Several bail commissioners said the new law makes it more difficult, but not impossible, to jail people. And anyone a bail commissioner jails goes before a judge the next morning, or if a weekend is involved, the next business day.

“It took time to get a handle on (bail reform),” said Paul Leary, a retired officer with the state Division of Forest and Lands.

Previously, he said, a bail commissioner would use arbitrary amounts to set cash or surety bail. The reform de-emphasizes the use of cash bail to keep someone in jail before trial.

If a person is dangerous, a bail commissioner and then a judge can determine that and not release them. Likewise, if a person has a history of not showing up for court dates, they can be held, the commissioners said.

Cash bail or a surety bond can still be used to guarantee someone shows up for court, but it cannot be so high that it prevents a person from getting out of jail.

“You have to evaluate and you have to weigh everything,” said Leary, who works out of Franklin. “The only difference now is you have to articulate it in writing.”

Likewise, Kathy Roy of Nashua said she will refuse to release some people — one person recently had not appeared in court on six occasions — but she has to justify it in the paperwork.

One of the challenges for bail commissioners in rural areas is getting the information they need to make an informed decision, Leary said.

Smaller departments don’t have easy access to someone’s arrest and court record, so at times a commissioner lacks all the information he or she would like to have, Leary said.

He believes the law is working as expected, but that means more people are being released and committing additional crimes instead of being jailed.

“We know in our heart of hearts it’s going to happen again,” he said.

“It’s a failure,” said a more animated O’Rourke, who blames Gov. Chris Sununu, saying he signed the law at the urging of the ACLU and Free State Project.

Sununu has said that revisions are needed and said he will name a committee of legislators to examine the law.

“When bail reform became law last year, I pledged that we would closely monitor its implementation. It is clear that there have been some unintended consequences, and I remain committed to overhauling the system in an expedited manner,” said Sununu. “I agree with the many stakeholders that have called for reform, and look forward to continuing to working with them to develop a new approach.”

He said a solution can be found that ensures public safety while not needlessly incarcerating someone simply because they cannot afford bail.

O’Rourke said some defendants will shoplift, get arrested, get released and then return to the same store.

“They would be better off in Valley Street jail than they would on the streets of Manchester. But I can’t put them there because of bail reform,” O’Rourke said.

Annual training sessions for bail commissioners take place throughout the month of October, but court system spokesman Carole Alfano would not disclose the times and places for the training.

State law sets a $40 payment for bail commissioners, but that payment comes from the defendant. A commissioner receives $40 when he or she sets bail, and $40 when they receive a bail payment.

If a defendant doesn’t have money, the bail commissioner gives him an envelope and asks them to return it with the money to a police department. That rarely happens, commissioners say. And if a defendant is poor, he can ask a judge to waive the fee.

Roy estimates that she gets paid for only about half the bail that she sets, typically at the beginning of the month when many people receive their government payments. Toward the end of the month, the non-payment rate is 70 percent.

Leary said his collection rate ranges from 62 to 67 percent. O’Rourke thinks he gets paid half the time.

“Most of the time we’re doing charity work,” Gamans said.

Bail commissioners said the non-payments are prompting more to quit, which means those who remain are asked to travel greater distances. Leary, who lives in Franklin, recently turned down a request to travel to Campton.

Roy has traveled from Nashua to Northwood.

They also said different courts have different approaches to collecting the fees.

For several of them, the job is not what it used to be.

Roy set bail for Jeffery Pendleton, the Nashua resident who was jailed for marijuana possession and ended up dying of a fentanyl overdose in jail. His case was frequently cited during debate on bail reform.

Roy said Pendleton had a history of not showing up in court. She talked him into agreeing to a $100 cash bail; he thought he could afford the $100 and it would be an incentive to make it to court. (He had won recent lawsuits against Nashua and Hudson for unjustified arrests.)

A judge kept the bail at $100, but Pendleton could find no one to bring him the money, Roy said.

She said another use of cash bail was to provide a monetary incentive for a caretaker to keep an eye on a defendant. She gave an example of a man accused of domestic crimes whose brother puts up a couple hundred dollars to bail him out. The caretaker brother has a monetary incentive to make sure his brother does not violate bail conditions, Roy said.

Now she has lost that leverage.

A new provision of the bail reform law says that commissioners cannot use homelessness or drug use as the sole means for denying bail.

She said defendants have become adamant and demand they be released, citing the new law.

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