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Bar News - January 18, 2017

Opinion: Crafting Appropriate Bail Conditions Takes Creativity


Fifty years ago, Chief Justice Frank Rowe Kenison wrote in State v. Hutton, “Too little is known about the actual operation of bail practices in this state.” Not much has changed during those intervening decades. Here, I’m going to write about the decision-making process for bail, which is one of the most difficult aspects of a judge’s job.

By law, a judge can only set cash bail or require a surety bond if the court finds that releasing the defendant on unsecured promise will not reasonably guarantee the defendant’s appearance for trial, or that it could endanger the safety of the defendant, another person, or the community.

A lot rides on the choice between releasing a defendant on personal recognizance or setting a high cash bail. Certainly, if the defendant is released and then commits a new crime, this can have tremendous costs for the victim and the criminal justice system. In the wake of the current opioid crisis, there is a high risk that the defendant may overdose and die if released without adequate treatment. Likewise, if the defendant is released and does not appear, the system must expend considerable time and resources to find, apprehend, and return the defendant to answer the charges.

On the other hand, incarcerating a defendant on unattainable bail has its own serious consequences. Even short periods of incarceration can cause a defendant to lose a job or housing. In many counties, over three-quarters of the inmates are awaiting trial. These defendants often cannot progress through the corrections system because they are ineligible for jail rehabilitation programs. Counties spend a lot of money jailing people who have not been convicted of any crimes, some of whom will ultimately be acquitted of the charges. As a result, the decision to hold these defendants on high bail has impacted their liberty interests. These practical and philosophical considerations lurk in the background of every bail decision.

There are several things that make setting bail uniquely challenging to a trial judge. First, the case comes before the court at an early stage in the proceedings. Often little is known about the defendant, his or her circumstances, or even the crime itself. The lawyers then stand before the court and make bail arguments through offers of proof. The court must make a decision relying on second-, third-, or even fourth-hand information.

Even if the court has sufficient information about the defendant’s personal history, criminal background, and the circumstances of the current charges, what does all that information mean to a judge setting bail? How does the court weigh those factors?

There is almost no case law in this state providing trial courts with guidance about these issues. Judgments are made almost exclusively based on anecdotal experience. Some jurisdictions around the country use evidence-based risk assessment tools. These instruments provide the court with an evaluation of whether the defendant is at high, medium, or low risk of flight or of committing a new offense while released on bail. This provides the court some scientifically validated data on which to base a bail decision. Unfortunately, these pretrial risk assessment tools are not used widely, if at all, in New Hampshire.

If the court has a concern about the defendant’s flight risk or dangerousness, how much cash will ensure that the defendant shows up for trial and does not harm himself or herself or others in the meantime? A corporate surety can provide the court a measure of comfort that the defendant will comply with bail conditions. Some bail companies are very diligent in keeping track of the defendant, including requiring a defendant to wear an electronic ankle bracelet or even requiring the defendant to submit to random drug tests. Other bail bond companies appear to do little to monitor the defendant until he or she does not show up in court. In cases where the defendant presents particular risks, the judge may impose conditions on the type of supervision the corporate surety must provide.

Sometimes a trusted family member can appear in court and promise the court to watch the defendant’s behavior until the case is completed. In some cases, family members can be quite effective at monitoring a defendant’s conduct. In other cases, the family members not only turn a blind eye to misconduct but actually enable that behavior.

What does the court do if a defendant has no family or is indigent and cannot afford to post any cash or obtain a surety bond? The problem is particularly acute when the defendant is homeless with few solid ties to the community. A poor person and a rich person who are equal risks to the community should not be treated differently. Creative bail conditions, including a requirement that the defendant have regular contact with defense counsel or the local police department, can provide some assurance that a defendant will be notified of court dates.

For those defendants who do not have those resources, a few counties have a pretrial release supervision program. These programs are typically run by the sheriff’s office or the house of corrections. They allow indigent defendants an opportunity to be released in the community with some level of bail supervision, thereby giving the court some confidence that the defendant will not harm anyone and will appear to answer the charges. Pretrial services are not available in all counties. It is also not an option for defendants who live out of state because New Hampshire law enforcement officials do not have authority to enforce bail conditions across state lines. In these cases, creativity again is the key to filling the gaps in services.

Whether a lawyer appears before the court as a prosecutor or defense lawyer arguing a bail motion, there are two things that can improve his or her case. Begin by providing the court as much information about the defendant, his or her criminal record, and the current charges as possible. Simply reading past criminal convictions off a computer printout is usually not helpful to the bail inquiry, unless the defendant has an unblemished record or a history of being a fugitive from justice. Providing the trial judge with specific information about the defendant’s ties – or lack thereof – to the community, including job, housing and family, can aid the court in making an informed decision.

Second, provide the court with options. Judges are statutorily obligated to find a way to allow a defendant to be released before trial if that can be done safely. Unless the lawyers provide reasonable, enforceable bail conditions, the judge may be forced to decide between jail or recognizance bail. Except in obvious cases, these extreme choices may not satisfy the tension between releasing a defendant whenever possible and protecting the community.

A good advocate can craft appropriate bail conditions to address the particular concerns posed by the defendant’s situation. Consider a recent case involving a defendant who lived out-of-state and had a history of drug overdoses and a track record of not completing treatment. The parties crafted bail conditions that included residential treatment, which would be supervised by a bail bond company through electronic monitoring. To address the risk of relapse, the surety also conducted random drug testing after the residential treatment was completed. The owner of the bail bond company came to court to explain the scope and extent of her supervision in cases like this.

In this situation, the parties addressed the primary concern that the defendant would be a danger to himself. An effective lawyer can give the court confidence that a defendant is not being jailed unnecessarily, the defendant and the community will remain safe, and the defendant will appear for all hearings. Preparation and creative thinking are, thus, the key to a successful bail argument.

RELATED: Cash Bail: Possible Avenues for Reform

Hon. N. William Delker serves as supervisory judge at Rockingham County Superior Court in Brentwood, NH. He previously served as a senior assistant attorney general at the NH Attorney General’s Office.

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