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Bar News - February 15, 2017


Opinion: Bail Response: Former Public Defender Says System Flaws Run Deeper

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NH Superior Court Judge N. William Delker recently wrote a very well-reasoned article on bail in New Hampshire (NH Bar News, Jan. 18, 2017). He pointed out some of the flaws in the state’s current cash bail system. He wrote of the difficulty that judges face when making bail decisions. He also lamented the fact that New Hampshire does not use risk assessment instruments in bail determinations. Finally, he pointed out the utter lack of guidance on bail issues in case law. Judge Delker’s concerns are well-founded, but I don’t think he went far enough as to detail all of the system’s flaws.

One thing that has yet to be mentioned in the public debate over cash bail is the problem I believe is most insidious. While working for the NH Public Defender for 12 years and continuing on in criminal practice after that, I have done hundreds of bail hearings. I have handled many cases in which bail, not the facts or the law, determined the outcome of the case. The reason is simple – “time served.” That phrase represents probably the single-largest source of unjust convictions in the state. It never comes into play in serious cases, so a “time served” offer typically does not result in an overly harsh sentence, but in the aggregate, many years of jail time and hundreds of thousands of dollars in fines are spent and collected simply because of the power of a “time served” offer.

If you are poor and in jail, unable to post bail, your entire existence is in jeopardy – your hold on a job is precarious to begin with, but now it is even more tenuous; your health care is in danger; your relationships are compromised; and your housing is under threat. It is a terrible place to be. Then there’s the criminal case, and on the day of the hearing, you are told that if you plead guilty today, all of it goes away. Pleading guilty to a crime you did not commit may seem irrational, but clients struggle, because the deal seems too good to give up. They can worry about constitutional rights and unjust convictions later. That worry is a luxury, and like all luxuries, it is something they cannot afford.

There are other problems with bail in New Hampshire.

Despite the legal focus on danger and flight risk, bail analysis often starts with the crime. The more serious the crime, the higher the bail. The seriousness of the crime, again absent compelling facts, doesn’t factor in the legal standard. If someone is charged with murder, of course that bears on safety, but if someone embezzled $1 million, it’s hard to see the connection to the bail standards (flight risk and dangerousness), despite the seriousness of the charge. By extension, there are charges that, in my opinion, should never result in cash bail, such as operating a vehicle with a suspended driver’s license and possession of marijuana. Public safety and flight risk, not charges, should drive the bail analysis.

Another problem is the idea of “low cash bail.” Sometimes people in the criminal justice system think low cash bail helps the defendant, but the reality is that bail of $100 only leads to the incarceration of poor people. If the case warrants low cash bail, it probably also warrants NO cash bail.

As Attorney Behzad Mirhashem pointed out in his article, also in the Jan. 18 issue of Bar News, the federal system takes finances into account. Bail decisions in New Hampshire should do the same thing. One NH District Division judge regularly asks about a person’s ability to post and, when warranted, she sets bail at the upper limit of what they say, enough to make the person understand the seriousness of the situation, but not enough to lock them up. It is an elegant and easy solution, in my view.

In addition, the system should take into account the difference between genuine flight and missing a court date. One is a bail concern, the other is a symptom of the chaotic lives many in the criminal justice system lead.

Also problematic is the way bail is handled in competency cases. Often people are held on cash bail when every party in the courtroom knows the defendant is incompetent to stand trial. For these defendants, the criminal justice system is an endless revolving door.

The bail system in our state is broken and we need to fix it. Systematic changes need to take place. Drug rehab and mental health treatment beds need to be more plentiful. But until that happens, many of these issues can be solved by changing practice and procedure, rather than our laws. We’ll know the problem is fixed when the pretrial incarceration rate is equal to the number of people who commit new offenses on bail, combined with the number of people who genuinely flee the law. As it stands, we are far from that equilibrium, and as we move even farther away from it, the greater the problems become.


Anthony Sculimbrene

Anthony Sculimbrene does criminal and civil work at Gottesman and Hollis in Nashua. Prior to that, he worked at the NH Public Defender for 12 years.

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