Bail Reform Law Needs a Fix for the Most Violent, Senate Panel Told

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UNH Law professor Buzz Scherr is pictured testifying before the Senate Judiciary Committee Wednesday in this screenshot.


CONCORD – In a proposed change to the state’s bail reform law, those accused of violent crimes against individuals would appear before a judge rather than go to a bail commissioner.

The 2018 bail reform law is not working entirely and law enforcement and at least one mayor would like to see changes, they told the state Senate Judiciary Committee.

For the most violent crimes, defendants should be detained until they can go before a judge, senators were told on Wednesday.

“Victims of crime deserve much more than we are giving them,” said Allen Aldenberg, chief of Manchester Police who testified in support of Senate Bill 248.

Sponsored by state Sen. Daryl Abbas R-Salem, a similar bill offered by Democrats, Senate Bill 252 was also heard.  

Buzz Scherr, an elected police commissioner in Portsmouth and a law professor, said he appreciated Aldenberg’s testimony but said some of the examples he listed would not be impacted by this potential law because they had allegedly committed misdemeanors. This would only relate to felonies.

Research by his UNH law students looked at 508 cases and he said there were only four circumstances when a person was released on bail and a motion to revoke bail was brought.
“It’s the failure of prosecutors,” he said, “not the bail statute.”

Scherr said there are many reasons why prosecutors are failing, including being overwhelmed with the workload.

Under the bill, which would make jail automatic in a dozen charges, it could be up to four days before that person sees a judge and that can be extremely traumatic, he said.

About 37 percent of those 508 cases studied were dismissed, he said. If the bill is passed “we will be over-incarcerating people.”
He said the bill would also be incredibly expensive for the state and bog down the court system.
“The problem is not the statute. The problem is the administration of the statute,” Scherr said.

Manchester Mayor Joyce Craig spoke in support of SB 252, saying bail reform has had a negative impact on her city, the state’s largest. While intended to help those who cannot afford cash bail, she said the changes have had unintended consequences.

“This bill will ensure that a judge makes a well-informed decision,” she said.

Countering Scherr’s data, she said there has been a 20 percent increase in re-offenses while on bail in the first year after bail reform.

She cited the murder of Daniel Whitmore, 75, of Manchester in September 2022.
Just days before Whitmore’s death, the accused was arrested in Nashua, for violating his previous bail terms. He was transported from Nashua to Hillsborough County House of Corrections in Manchester and once again, released on personal recognizance.

“This tragic outcome could likely have been prevented with changes to our bail system,” Craig said.
She called it “common sense” bail reform.
“It is one step we can take to help ensure the safety of our communities,” the mayor said.

Bedford Police Chief John Bryfonski, speaking on behalf of the New Hampshire Chiefs of Police, said the chiefs all support “minor, surgical, common-sense change” that is required in the bail reform law and would occur if SB 248 is passed. This would impact only a small number of individuals charged with the most serious crimes and would not overload the judiciary, he said.

He said when there is talk of statistics “you have to look at all the moving parts.”
This is truly about the victims of crime,” he said. “and whether or not it results in one less homicide…its worthy of consideration and passing in this state.”

Brian Trefry, a Nashua police captain gave an example of a violent crime and re-offense within hours including rape in 2021.
Bail commissioners do have the ability to require preventative detention and do in most cases when requested, he said. But “if we can’t make that argument to him…he’s going to be put back out on the streets.”
Often these bail commissioners are working in the early hours of the morning and do not have the full picture that a judge would have, police said.
But change might come at a cost on a court system that is stressed, said Richard Head, government affairs coordinator for the state’s judicial branch.

He said they take no position on the bill but said there would be a financial and time impact on the circuit court system.
There, about 127,000 cases are filed a year and there are 32 full-time judges for 249 session days. Add to that statutory deadlines “you have a tremendous burden being put within this system. The system is full as we currently have it,” Head said. He asked the implementation date to be extended to accommodate system needs for sequencing to occur.

State Sen. Sharon Carson, R-Londonderry, chair of the Senate Judiciary Committee said, “What I am seeing is a revolving door…that is not in the best interest of public safety and that is what we need to stop.”

Head said he is only trying to explain the consequences.

“We are pushing a lot into the system on one day, Jan. 1,” Head said. “I’m not questioning the public safety aspect of what you have said.”

Frank Knaack, policy director with the ACLU of New Hampshire, spoke in opposition to the bill.
“We have multiple tools under the current statute that are not being utilized,” he said.
He said the current system allows for individualized determinations rather than a one-size-fits-all policy.
He said crime is down 18 percent in the state since bail reform and said in Manchester, it is down 13 percent.

Jeff Odland, president of the New Hampshire Association of criminal defense lawyers, urged the committee to consider keeping the current bail regime in place “because the system is focused on individualized bail decisions rather than a category which is the charged offense.”

He argued that someone with a restraining order – say a spouse who texted the other to say “happy birthday” to a child – could be held for up to four days, automatically, and could not only lose their liberty for those days but lose their employment.

He asked legislators to consider whether there is a crisis, which he argued, there is not.
Carson said constituents began calling legislators with concerns very quickly after bail reform passed.

State Sen. Donna Soucy, D-Manchester, said both bills will do the same thing to help improve the system.
She said bail reform occurred in 2018 and “when this change happened, the infrastructure to accommodate it was not in place,” she said.

“Bail commissioners, though trained, needed more training,” she said, and it varies throughout the state.
County attorneys offices change due to elections and have extraordinary caseloads.
“What SB 252 would do would identify the most violent of crimes and go before a judge. It does not necessarily mean people are waiting days and would not require the extensive detainment,” Soucy said.

The Judiciary Committee also heard SB 249 which would change the law to require those who have committed subsequent offenses while out on bail and pending trial should be held in jail until their trial.

Another bill, related to community-based sentencing alternatives for primary caregivers, Senate Bill 254, was requested to be killed by its sponsor, Sen. Rebecca Perkins Kwoka, D-Portsmouth.
She said she wanted to convene a working group on the subject instead.

The Senate Judiciary Committee agreed to recommend the bill inexpedient to legislate.
Senate Bill 264 is related to parentage law related to embryo donations.

Perkins Kwoka said the bill through assisted reproduction – with donors – would allow families and individuals to use the judicial system more easily.
The committee concluded the hearings without voting out any other bills than SB 254.

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