SB 294-FN - AS INTRODUCED

2022 SESSION

22-2902

04/05

SENATE BILL 294-FN

AN ACT relative to the release of a defendant pending trial.

SPONSORS: Sen. Bradley, Dist 3; Sen. Hennessey, Dist 1; Sen. Ricciardi, Dist 9; Sen. Carson, Dist 14; Rep. Deshaies, Carr. 6; Rep. Shaw, Hills. 16; Rep. Abbas, Rock. 8

COMMITTEE: Judiciary

─────────────────────────────────────────────────────────────────

ANALYSIS

This bill amends the statute governing bail and pre-trial release to include provisions for pre-trial detention for commission of certain offenses that would create a presumption that the defendant is a danger to the public.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

22-2902

04/05

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twenty Two

AN ACT relative to the release of a defendant pending trial.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1  Bail and Recognizances; Release of a Defendant Pending Trial.  Amend RSA 597:2 to read as follows:

597:2  Release of a Defendant Pending Trial.

I.  Except as provided in paragraph III or VI, upon the appearance before the court of a person charged with an offense, the court shall issue an order that, pending arraignment or trial, the person be:

(a)  Released on his or her personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph III;

(b)  Released on a condition or combination of conditions pursuant to the provisions of paragraph III;

(c)  Detained; or

(d)  Temporarily detained to permit revocation of conditional release pursuant to the provisions of paragraph VIII.

II.  Except as provided in RSA 597:1-d, a person charged with a probation violation shall be entitled to a bail hearing.  The court shall issue an order that, pending a probation violation hearing, the person be:

(a)  Released on his or her personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph III;

(b)  Released on a condition or combination of conditions pursuant to the provisions of paragraph III; or

(c)  Detained.

III.  When considering whether to release or detain a person, the court and a bail commissioner shall consider the following issues:

(a)  Safety of the public or the defendant.  

(1)  A person who is charged with homicide under RSA 630:1; first degree assault under RSA 631:1; second degree assault under RSA 631:2; domestic violence under RSA 631:2-b; aggravated felonious sexual assault under RSA 632-A:2; felonious sexual assault under RSA 632-A:3; kidnapping under RSA 633:1; stalking under RSA 633:3-a; trafficking in persons under RSA 633:7; robbery under RSA 636:1, III; possession, manufacture, or distribution of child sexual abuse images under RSA 649-A; computer pornography and child exploitation under RSA 649-B; or felonious use of firearms under RSA 650-A:1, shall, upon arrest, be detained for a period of not more than 72 hours from the time of his or her arrest, excluding Saturdays, Sundays, and holidays, based upon the rebuttable presumption the person charged is a danger to the public.  

(2)  If a person is charged with any other criminal offense, an offense listed in RSA 173-B:1, I, or a violation of a protective order under RSA 458:16, III, or after arraignment, is charged with a violation of a protective order issued under RSA 173-B, the court may order preventive detention without bail, or, in the alternative, may order restrictive conditions including but not limited to electronic monitoring and supervision, only if the court determines by clear and convincing evidence that release will endanger the safety of that person or the public.  In determining whether release will endanger the safety of that person or the public, the court may consider all relevant factors presented pursuant to paragraph IV.

(b)  Assuring the court appearance of charged persons.

(1)  The court shall order the pre-arraignment or pretrial release of the person on his or her personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, or cash or corporate surety bail, subject to the condition that the person not commit a crime during the period of his or her release, and subject to such further condition or combination of conditions that the court may require unless the court determines by a preponderance of the evidence that such release will not reasonably assure the appearance of the person as required.

(2)  If the court determines by a preponderance of the evidence that a person has failed to appear on any previous matter charged as a felony, class A misdemeanor, or driving or operating while impaired, or a reasonably equivalent offense in an out-of-state jurisdiction, 3 or more times within the past [5] 3 years, or twice on the present case, there shall be a rebuttable presumption that release will not reasonably assure the appearance of the person as required and the person shall be detained in pre-trial detention.  

(3)  In determining the amount of the unsecured appearance bond or cash or corporate surety bail, the court may consider all relevant factors bearing upon a person's ability to post bail.

(4)  The court shall not impose a financial condition that will result in the pretrial detention of a person solely as a result of that financial condition unless the court determines by clear and convincing evidence that the nature of the allegations presents a substantial risk that the person will not appear and that no reasonable alternative will assure the person's appearance.  The defendant shall be afforded the opportunity to be heard.

(c)  Failure of a person to abide by previous bail conditions.  If there is probable cause to believe that, while on release pending resolution of a previous offense, the person committed a felony, class A misdemeanor, or driving or operating while impaired, was released on bail, and thereafter was arrested for a third felony, class A misdemeanor, or driving or operating while impaired, there shall be a rebuttable presumption that the person will not abide by a condition that the person not commit a new offense and the person shall be detained in pre-trial detention. [The court shall not impose a financial condition that will result in the pretrial detention of the person solely as a result of that financial condition unless the court determines by clear and convincing evidence after a hearing that no reasonable alternative or combination of conditions will assure that the person will not commit a new offense.] The court may consider any relevant factors in making its determination.

IV.(a)  Evidence in support of preventive detention shall be made by offer of proof at the initial appearance before the court.  At that time, the defendant may request a subsequent bail hearing where live testimony is presented to the court to rebut the presumption that the defendant is a danger to the public or is at-risk of re-offending while on bail.

(b)  At any subsequent hearing, such testimony may be presented via video conferencing, unless the court determines that witness testimony in court is necessary.  A request by the defendant for in-court testimony shall be made by oral motion at the initial hearing or by written motion prior to any subsequent hearing.  Any order granting the defendant's request shall be distributed to the parties at least 48 hours prior to any subsequent hearing.

(c)  There shall be a rebuttable presumption that an alleged victim of the crime shall not be required to testify at the bail hearing.  Nothing in this section shall preclude an alleged victim from voluntarily testifying at such hearing.  The state may present evidence of statements made in the course of an investigation through a law enforcement officer.

V.  A no-contact provision contained in any bail order shall not be construed to:

(a)  Prevent counsel for the defendant from having contact with counsel for any of the individuals protected by such provision; or

(b)  Prevent the parties, if the defendant and one of the protected individuals are parties in a domestic violence or marital matter, from attending court hearings scheduled in such matters or exchanging copies of legal pleadings filed in court in such matters.

VI.  If a person is charged with violation of a protective order issued under RSA 173-B or RSA 633:3-a, the person shall be detained without bail pending arraignment pursuant to RSA 173-B:9, I(a).

VII.  In a release order issued pursuant to this section, the court shall include a written statement that sets forth:

(a)  All of the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the person's conduct; and

(b)  The provisions of RSA 641:5, relative to tampering with witnesses and informants.

VIII.  A person charged with an offense who is, or was at the time the offense was committed, on release pending trial for a felony or misdemeanor under federal or state law, release pending imposition or execution of sentence, appeal of sentence or conviction, or completion of sentence, for any offense under federal or state law; or probation or parole for any offense under federal or state law, except as provided in RSA 597:1-d, III, [may] shall be detained for a period of not more than 72 hours from the time of his or her arrest, excluding Saturdays, Sundays and holidays.  The law enforcement agency making the arrest shall notify the appropriate court, probation or parole official, or federal, state, or local law enforcement official.  Upon such notice, the court shall direct the clerk to notify by telephone the department of corrections, division of field services, of the pending bail hearing.  [If the department fails or declines to take the person into custody during that period, the person shall be treated in accordance with the provisions of law governing release pending trial.] Probationers and parolees who are arrested and fail to advise their supervisory probation officer or parole officer in accordance with the conditions of probations and parole [may] shall be subject to arrest and detention as probation and parole violators.

IX.  Upon the appearance of a person charged with a class B misdemeanor, the court shall issue an order that, pending arraignment, the person be released on his or her personal recognizance, unless the court determines pursuant to paragraph III that such release will endanger the safety of the person or the public.  The court shall appoint an attorney to represent any indigent person charged with a class B misdemeanor denied release for the purpose of representing such person at any detention hearing.

X.  A person detained by a circuit court has the right to:

(a)  In the first instance, a hearing in circuit court within 36 hours after the filing of the motion, excluding weekends and holidays on a motion to reconsider the original detention order; and

(b)  A decision upon a de novo appeal, pursuant to RSA 597:6-e, II, to the superior court within 36 hours of the filing of the appeal, excluding weekends and holidays.

2  Effective Date.  This act shall take effect January 1, 2023.

LBA

22-2902

Revised 4/11/22

SB 294-FN- FISCAL NOTE

AS INTRODUCED

AN ACT relative to the release of a defendant pending trial.

FISCAL IMPACT:      [ X ] State              [ X ] County               [ X ] Local              [    ] None

METHODOLOGY:

This bill amends the statute governing bail and pre-trial release to include provisions for pretrial detention for commission of certain offenses that would create a presumption that the defendant is a danger to the public.

The Judicial Branch provided the following information and assumptions concerning the fiscal impact of the bill:

Detention Following Arrest:

• The bill would require a person who is charged with serious offenses identified to be detained pending arraignment before the court.  Arraignments shall occur no later than 72 hours after arrest (excluding Saturdays, Sundays, holidays) based upon the rebuttable presumption the person charged is a danger to the public.   
• The Superior and Circuit Courts coordinate daily with county jails to provide for video hearings of all types.  Each county jail has a limited number of time slots available for video hearings with the court.  In many counties, the current hearing schedule has  filled all or nearly all available video time slots with county jails.  As a result, the  Branch assumes many of incarcerated arraignments under the bill will result in transportation of the defendant to the courthouse by county sheriffs.  The Judicial Branch reimburses county sheriffs to transport individuals to all courts and to provide  security in Circuit Court.  The Branch anticipates between 1,000 – 2,000 additional transports from a county facility to a courthouse.
• Current practice in Superior Court is for defense counsel and the prosecutor to be physically in the courtroom with the judge during the arraignment.  The Branch anticipates this practice would continue for the additional arraignments under the bill.  Public defenders do not typically participate in Circuit Court arraignments.  
• The majority of criminal cases in Circuit Court are filed in Manchester, Nashua, Rochester and Concord.  A person detained by a Circuit Court has the right to a hearing in Circuit Court within 36 hours (excluding weekends and holidays) after the filing of a motion to reconsider the original detention order.  
• Bail decisions made in the Circuit Court can be appealed for a de novo hearing in the Superior Court.

Third Crime Arraignment Hearings:

• The bill provides “If there is probable cause to believe that, while on release pending resolution of a previous offense, the person committed a felony, class A misdemeanor, or driving or operating while impaired, was released on bail, and thereafter was arrested for a third felony, class A misdemeanor, or driving or operating while impaired, there shall be a rebuttable presumption that the person will not abide by a condition that the person not commit a new offense and the person shall be detained in pre-trial detention. The court may consider any relevant factors in making its determination.”
• For each such defendant held in pretrial detention, the Judicial Branch assumes at least one hearing would be requested.  Although the Branch does not know how many such hearings would occur, the additional judicial and staff resources required to handle the additional incarcerated arraignments would also be needed for these hearings.

Additional Resources:

• Based on 2019 actual data the Branch estimates there will be approximately 2,849 new bail hearings held in Circuit Court.  Assuming 5.8 minutes per bail hearing, the additional hearings will require 36 additional session days (7.5 hours per day), or approximately 7.3 weeks of additional hearing time.  The hearings will require additional judicial resources and  additional court staff resources to manage additional paperwork and coordination with county jails for video time and the county sheriffs for transportation and court security.  The bill will also result in additional hearings for those who fall within the second arrest provisions, additional motions and pleadings based on those who are not able to make bail, and appeals of Circuit Court bail decisions to Superior Court.  The Circuit Court will also likely see an increase in the number of motions to reconsider original detention orders, but the Branch is unable to determine how many additional hearings will occur.
• The Superior Court will also experience an increase in detention bail hearings that are currently conducted through bail commissioners, but the Judicial Branch is unable to determine how many are likely to occur.

Based on the assumptions above, the Branch estimates it will require 4 additional Circuit Court judges, 4 additional Circuit Court assistants and 4 additional Superior Court monitors to manage the additional incarcerated arraignments, and unknown number of presumption hearings.  The Branch provided the following cost estimate for the additional judicial resources:

In addition to the judicial resources above there would be additional expenditures for sheriff transportation and security details at district division courthouses.  The sheriff transport is  currently set at the statutory rate of $65/full day and $35/half day.  Assuming roughly 2,500 additional half day transports (some would include more than 1 defendant), there would be an additional cost of $87,500.  

Lastly, the Judicial Branch fiscal analysis does not account for the additional expenditures that the Branch assumes would be incurred by county attorneys, local police, public defenders, county jails or state prisons.

The Judicial Council indicates the indigent defense system does not currently provide counsel for non-incarcerated arraignments.  When an indigent defendant is held, the Council provides representation for bail hearings.  Due to the ongoing indigent defense crisis, there are hundreds of clients currently without representation.  The Council is prioritizing appointment of counsel for incarcerated clients but it has been extremely challenging to appoint counsel on a timely basis.  In some cases, the Council has had to appoint counsel to handle bail hearings and then find another attorney to accept the underlying case.  Based on the court’s estimate of 2,849 additional incarcerated bail hearings, the Council anticipates a significant, but indeterminate, cost to the indigent defense system.  At this time there are not enough attorneys to handle the anticipated increase in bail hearings.

The New Hampshire Association of Counties states this bill would amend the bail statute to allow individuals to be held without bail if the defendant is deemed a danger to the public.  The defendant could achieve bail by going before a judge.  The Association indicates there would be a cost increase to the county correctional facilities to hold individuals while they wait to go before a judge.  The Association is unable to determine how many cases this bill would impact.

The New Hampshire Municipal Association indicated the bill may increase local expenditures but any potential impact can not be determined in advance.

AGENCIES CONTACTED:

Judicial Branch, Judicial Council, New Hampshire Association of Counties and New Hampshire Municipal Association