IN 2018, a diverse group of stakeholders — including judges, law enforcement, prosecutors, legislators, civil rights advocates, and jail superintendents — came together to form the Commission on Pretrial Detention. It developed recommendations for reforming our state’s pretrial system that carefully balanced the need to protect individual liberty while ensuring public safety.
Many commission recommendations are now law, drastically reducing the number of people needlessly incarcerated. Prior to these reforms, thousands of Granite Staters were held though they posed no danger to their community and were still considered innocent in the eyes of the law. Many were incarcerated because they could not afford bail.
It’s not every day that the ACLU and Americans for Prosperity come together on an issue. However, we agree that our state should not undo the progress we have made towards improving our pretrial system.
When the House reconvenes today, they will consider SB 92, which would result in needless incarceration of thousands of at a staggering cost to taxpayers. SB 92 mandates incarceration of certain people before charges are even filed against them based only on unsubstantiated allegations they committed one of 13 arbitrarily selected offenses.
The legislation would force judges to jail people pretrial if they failed to appear for a court date in the past, regardless of whether such failure was unintentional (e.g. lack of transportation, child care responsibilities, or work requirements).
Despite the rhetoric of those pushing SB 92, it will not make communities safer. Crime has substantially decreased since the bail reforms in 2018. Current law already allows a judge to detain any individual pre-trial if they are a flight risk or a danger. SB 92 will do nothing to give law enforcement officers or judges more tools but will tie their hands. This legislation goes so far as to mandate the incarceration of innocent people for certain misdemeanors that don’t even carry jail time if convicted.
This legislation would also impose an unnecessary burden on taxpayers. Our courts would need an additional $3 million each year to implement this law, including hiring additional judges and support staff. That does not include the unknown expenses communities would incur to jail potentially thousands of additional people each year at a cost ranging between $105 and $125 a day per person. This is an unjustifiable waste of Granite Staters’ tax dollars.
Unlike the reforms adopted in 2018, this legislation is based in fear. Despite rhetoric and anecdotal stories from proponents, they have provided no evidence to support their claim that these reforms will make New Hampshire a safer place. We cannot allow fear rather than facts to dictate public policy when freedom of thousands at stake.
To make matters worse, this legislation flips the bedrock principle of innocent until proven guilty on its head. The bill presumes guilt by mandating detention of individuals based merely on the offense they were charged with, which we know is sometimes arbitrarily determined and later reduced after the prosecutor reviews it. To deny the liberty of someone presumed innocent, the evidentiary standard should be high and the burden of meeting it should be on the government. This legislation fails to meet this basic test.
The consequences of being jailed while awaiting trial can be devastating. Pretrial detention, even for a short time, increases the likelihood of innocent people pleading guilty, loss of employment, income and housing, and traumatic family disruption. This legislation would subject potentially thousands of Granite Staters to these devastating collateral harms.
New Hampshire should avoid this misguided one-size-fits-all approach. Under current law, prosecutors can seek pretrial detention of anyone they believe is a danger. This approach works. New Hampshire should keep pretrial decisions in the hands of judges whom we trust with significantly more complicated decisions each day.