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N.H. County Attorneys Oppose Bail Reform Bill

Valley News Staff Writer
Published: 5/16/2018 11:33:33 PM
Modified: 5/16/2018 11:33:42 PM

Newport — All 10 county attorneys in New Hampshire are opposing a bill likely to reach Gov. Chris Sununu that would change bail procedures in the state, arguing it goes beyond the scope of helping poverty-stricken individuals and could jeopardize public safety.

However, lawmakers and members of the American Civil Liberties Union of New Hampshire back the changes, which would release offenders on personal recognizance bail, instead of cash, as long as a judge determines they aren’t a danger to themselves, their community or a flight risk.

“The fundamental changes that would be created by passage of SB 556 would unquestionably place back out onto the streets many offenders who previously would have qualified for some order of detention,” the county attorneys wrote in a May 9 letter to Sununu. “If those persons are now forced to be released by the new proposed criteria, particularly in areas of the state that have zero or limited bail supervision services, we must conclude that the general public will be less safe.”

The legislation passed both the House and Senate, and a conference committee on Tuesday made some changes to try to appease police concerns, but prosecutors are still raising objections.

Under the bill, determining whether someone is deemed a risk to themselves or others can’t be based solely on evidence of drug or alcohol addiction, or homelessness. In addition, when determining the amount of personal recognizance bail, a judge would have to factor in whether defendants were the parent or sole caretaker of a child who would end up in state custody, and whether they were the sole income producer for other people.

Sullivan County Attorney Marc Hathaway took issue with those factors and others, so much so that he sent his first letter to the editor related to legislation in 30 years in office.

“There is no single factor more predictive of one’s danger to public safety or themselves than drug and/or alcohol addiction,” Hathaway wrote.

And the provision relating to children, he said, “mean(s) that two criminal defendants, otherwise identically situated, would be viewed differently under the law because of the economic impact on the state. …This is not economic fairness.”

“This is not good public policy. This will undermine public safety. This is not what the New Hampshire criminal justice system should be doing,” Hathaway continued.

Grafton County Attorney Lara Saffo shared Hathaway’s concerns, and pointed to a few of her own.

The bill states that the court must determine “by clear and convincing evidence” that releasing a person will put them or others in danger. If it doesn’t, the defendant would be released.

“So, how does a prosecutor prove by clear and convincing evidence? Do we have to put the victim on the stand? If that is the case, this is horrible,” Saffo said in an interview on Wednesday.

As it stands, Hathaway and Saffo said judges in their counties make thoughtful decisions on bail, and if defense attorneys think to the contrary, they can file an appeal.

“I just don’t think vast legislative reform tying the hands of our judges makes any sense or is necessary,” Saffo said.

Hathaway agreed.

“We shouldn’t have ‘nuisance’ bail,” he said in a telephone interview. “But we don’t do that now. Judges don’t routinely post bail without a good reason to do so.”

Buzz Scherr, a University of New Hampshire School of Law professor who is a member of the ACLU of New Hampshire, said the bill in its current form is a compromise from various stakeholders that “moves forward our ability to increase public safety and make sure that people who are held in jail solely because they don’t have money aren’t going to be held in jail pretrial before they have been convicted.”

He said the bill expands the number of crimes that meet the specifications to detain someone without bail if he or she meets the criteria for dangerousness. In addition, he said, the bill takes into consideration someone’s financial state when setting bail.

The county attorneys in New Hampshire have chosen to raise the issues in the 11th hour, Scherr said. The measure is expected to go back to both chambers for a final vote before being sent to Sununu.

State Sen. Martha Hennessey, D-Hanover, one of the bill’s sponsors, could not be reached for comment on Wednesday.

Sununu’s spokesman, Benjamin Vihstadt, said the governor is “inclined” to sign the bill, pending a final review.

Jordan Cuddemi can be reached at or 603-727-3248.

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