Replacing bail commissioners with judges gets pushback
Jan. 26—CONCORD — Policymakers Thursday took up the first of seven proposals on bail reform they will consider in 2023, this one to replace bail commissioners with full-time circuit court judges.
State Rep. Robert Lynn, R-Windham, a retired Supreme Court chief justice, said only legally trained judges should "take away someone's liberty."
"My basic point is this. It seems to me that if you are going to have the authority to take away someone's liberty, the person who does that ought to be a judge," Lynn told the House Criminal Justice and Public Safety Committee during a hearing on his bill (HB 318).
Rep. John Sytek, R-Salem, a bail commissioner for more than two decades, said the current system is more cost-effective and better for both law enforcement and the offenders.
"I think this will work against the liberty interest of those arrested by detaining them longer," Sytek said of the change.
"The present system of bail commissioners is like democracy; it may not be the best system, but it is better than all the alternatives that I have seen."
Next Wednesday, the same House committee will consider a proposal by Rep. Linda Harriott-Gathright, D-Nashua, and Speaker Emeritus Steve Shurtleff, D-Penacook, to replace bail commissioners with court magistrates (HB 46).
Supporters of this option said legally trained magistrates could more quickly approve bail conditions remotely than a judge could after an in-person hearing.
Albert "Buzz" Scherr, an appellate law defender with 40 years of experience, endorsed the magistrate idea.
Richard Head, government relations coordinator for the Judicial Branch, urged the panel to put off action on the bills until early 2024 and conduct a study into the required staffing.
The court system is already dealing with implementing a major overhaul passed last year that will return all felony trials to lower circuit courts, Head said.
That change takes effect next Jan. 1.
In 2015, the Legislature approved "felony first," which moved all these cases to superior courts.
"My only message on bail reform and what you are talking about with regards to this bill is they have to be considered into how it gets absorbed into the system," Head said.
Lynn's bill calls for adding three circuit court judges to help process these bail hearings.
But Lynn said he expects Supreme Court Chief Justice Gordon MacDonald to ask the Legislature for up to seven more circuit court judges in the next two-year state budget just to handle the existing workload.
The court system last year conducted an extensive study into its staffing requirements.
"It may make sense to do bail reform first and eliminate bail commissioners later," Lynn said.
Trixie Lefebvre, another bail commissioner, said the nearly 100 current commissioners are carrying $48,000 in unpaid fees, and the Legislature has several times rejected bills to provide reimbursement.
"The elimination of bail commissioners will carry a tremendous financial burden to our taxpayers and also place an unknown cost burden on our county jails," she said.
Much of the bail reform fight is over whether the Legislature will retreat from what it passed five years ago and subject more defendants to a mandatory hearing before a judge can release them on bail.
Lynn's bill creates 12 classes of crimes that would require a bail hearing.
Court officials estimate this could create up to 2,500 more bail hearings a year in lower courts.
A state Senate committee holds its own hearing next Wednesday on a proposal (SB 318) from Sen. Daryl Abbas, R-Salem, to require pre-trial detention for many arrested for violent offenses.
Last spring, lawmakers came close to a bipartisan agreement on bail reform, but negotiations collapsed over the final language.
The New Hampshire Association of Chiefs of Police has fought hard for bail reform, citing recent cases of violent offenders being put back on the street with no bail required.
But critics said while there have been a few cases in the media of no-bail offenders committing other crimes, there's no data to back up the claim the existing system is broken.
Frank Knaack, policy director with the American Civil Liberties Union of New Hampshire, said that since bail reform passed, major crime has dropped 18% statewide and 13% in Manchester, where police, legislators and city officials have lobbied hard to change the bail process.
"The notion that our communities are less safe due to bail reform is not supported by the facts," Knaack said.
Scherr said last summer he completed a review of 500 bail files in the local and superior courts in Manchester. In only four instances did a person who got bail without a court hearing go on to reoffend, Scherr said.
"We have heard anecdote after anecdote about the horrors of the statute; that is a false narrative," Scherr said.
