Anyone accused of a serious violent crime would have to face a judge in order to receive bail under a bill that narrowly won approval from a House committee Tuesday.
The legislation also would detain prior to trial anyone who was out on bail and failed to appear in court three times in the past three years for a felony, a jail-offense misdemeanor or drunk or drugged driving.
The 11-10 vote of the House Criminal Justice and Public Safety Committee rewrote the measure (SB 92) passed last spring by the state Senate.
Committee Chairman Daryl Abbas, R-Salem, said there have been too many examples of a violent offender being granted bail by a bail commissioner only to commit another crime in the community.
State Rep. Robert Lynn, R-Windham, a retired state Supreme Court chief justice, said lawmakers should consider doing away with bail commissioners and have all bail decisions come before a judge or clerk magistrate.
As amended, a bail hearing before a judge would be required in cases of murder, rape, kidnapping, human trafficking, robbery, child pornography, computer pornography, child exploitation, felonious use of firearms, domestic violence and stalking.
Abbas noted the latter two crimes are misdemeanors that may not carry jail time.
“It is a violent crime that is often repeated, and it is underreported,” said Abbas, a criminal defense lawyer. “Morally I could not resolve removing a misdemeanor domestic violence crime from this list.”
State Rep. Fred True, R-Sandown, was the lone Republican on the committee to oppose the bill.
“To create a situation where someone can lose their freedom for a violation … taking someone’s freedom away for a misdemeanor that carries no jail time at all is why I can’t support the bill,” True said.
Rep. Terry Roy, R-Deerfield, said those who could be detained for offenses such as drunken driving would have already been out on bail and repeatedly violated the terms of it.
Rep. Casey Conley, D-Dover, was the lone Democrat who backed the bill.
“The bill as amended in my opinion is not egregious; in fact, it’s a balanced approach,” Conley said. “This doesn’t strike me as particularly problematic.”
More judges would be needed
Richard Head, acting general counsel with the New Hampshire Supreme Court, said the change could increase costs up to $3 million a year, especially in the four circuit courts that would have the lion’s share of bail hearings: Manchester, Nashua, Concord and Rochester.
In 2019, there were nearly 3,000 domestic violence and stalking cases in which the accused offender got bail without a judge’s hearing, Head said.
Each of those four courts would need another full-time judge and support staff to handle an average of a dozen more hearings each day the court was in session, he said.
The consequence of making current judges handle these bail hearings would cause civil and other cases to take much longer to complete, he said.
Devon Chaffee, executive director with the American Civil Liberties Union of New Hampshire, said the House panel improved what had come out of the Senate last spring, but it still would be expensive and time-consuming to carry out.
“We continue to have concerns with the way that this bill has been written,” Chaffee said.
Bedford Police Chief John Bryfonski said earlier bail reform laws allowed too many violent offenders to fall through the cracks.
“The … adjustment to the bail law is to ensure the most violent offenders are held long enough and seen by the judge, who can weigh the evidence to determine whether that person should be put back in the community,” Bryfonski said.
Rep. David Meuse, D-Portsmouth, said past bail laws came as a result of work by a commission of stakeholders, but he said law enforcement had greater influence on this 2021 product.
“We have the bill and have an amendment drafted by one particular constituency. I continue to think that is a problematic way to do things,” Meuse said.
Rep. Gary Hopper, R-Goffstown, noted that, as written, the bill makes sure a bail hearing must take place within 24 hours after an arrest — 36 hours if the arrest is on the weekends.
“I think we are overthinking this. We are talking about people who have allegedly done some serious things, saying they might have to stay a night or two in jail. What’s the big deal?” Hopper said. “We aren’t talking about irreparably destroying someone’s lives.”