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Bar News - January 18, 2017

Criminal Law: Cash Bail: Possible Avenues for Reform


New Hampshire, like several other states around the country, is taking a serious look at the way judges set bail in criminal cases and the disproportionate, negative effects those decisions can have on indigent defendants. With the formation of a subcommittee by the Interbranch Criminal and Juvenile Justice Council, it looks as though reform may now be on the horizon.

A criminal trial takes place months, sometimes years, after arrest. For a criminal defendants, what happens between the first appearance in court and the trial is of crucial importance: if held in jail pending trial, the accused is likely to lose his or her job and place of residence, before guilt or innocence has even been adjudicated.

A pretrial detainee’s highest priority is often to get out of jail as quickly as possible, even if that means not fighting charges he or she would otherwise be inclined to contest. Therefore, whether the accused is released on bail or, instead, held in jail pending trial is of critical importance to the defendant, his counsel, his loved ones, and to society at large.

In its current practice with respect to bail, New Hampshire’s criminal justice system relies heavily on cash (or surety) bail. This system raises two significant issues that often lead to outcomes that are at least arguably inconsistent with the bail statute, which allows for cash bail as a “condition” of “release” (RSA 597:2, II & III).

First, in very serious criminal cases, extremely high bail is used effectively as a substitute for an order detaining the defendant without bail. Second, in another class of cases, bail is set in an amount low enough that many individuals can post it, but a poverty-stricken defendant cannot.

An examination of current bail practices in federal court, as compared to the state system, is helpful for gaining a better understanding of these issues and alternative ways the system could operate.

In the state system, if the judge determines that pretrial release on a promise to appear back in court is insufficient to “reasonably assure” either “the appearance of the person” or “the safety of the person or of any other person or the community,” the bail statute empowers the judge to impose appropriate conditions on the defendant’s pretrial release (RSA 597:2, II & III). While some of these conditions may be non-monetary, the judge may also require the defendant to post an amount of cash or have a surety bond posted on his behalf before release. (Bondsmen require a fee to post a bond, typically 10 percent of the bail amount, in addition to title to property sufficient to cover their loss if the defendant does not appear.)

Now consider an individual accused of a very serious crime. In such cases, it is not uncommon for bail to be set at tens or even hundreds of thousands of dollars, which most defendants have no hope of posting. It is reasonable to assume that flight risk is correlated with the severity of the sentence faced if convicted, which in turn depends on the seriousness of the offense. Typically, however, high bail is set not primarily because the defendant is a flight risk – he may be a lifelong New Hampshire resident with extensive local ties – but because he is deemed dangerous to himself or others.

But the logic of this approach is questionable. The extremely rare individual who is able to post a high cash bail is arguably no less dangerous than the similarly situated one who is not. In these cases, high bail is effectively used as a tool for preventive detention. New Hampshire law allows for pretrial detention without bail in very limited circumstances, but the bail statute clearly contemplates pretrial release in most situations. (Detention without bail is permitted in some limited circumstances, such as certain domestic violence offenses (597:2, III-a) or offenses punishable by life imprisonment “where the proof is evident or the presumption great.” (RSA 597:1-c)). Yet, in practice, high cash bail can be used as an instrument to accomplish an end not contemplated by the bail statute.

Consider as well an individual charged with a less serious offense, but with a prior history of a few nonappearances in court. In such circumstances, it is not uncommon for bail to be set at several hundred or a few thousand dollars with the goal of ensuring the accused’s appearance at trial. Logically, however, the amount of money necessary to ensure such appearance varies significantly depending on the financial circumstances of the accused. Yet, bail is often set with little or no consideration of an accused’s specific financial circumstances.

Federal Bail Practice

Decades ago, in Stack v. Boyle (1951), the United States Supreme Court recognized that, in setting bail in a federal criminal case, “the financial ability of the defendant to give bail” is one of the factors that should be considered. Today, the federal bail statute contains the following explicit requirement: “The judicial officer [setting bail] may not impose a financial condition that results in the pretrial detention of the person.” (18 USC section 3142 (c)(2)).

In other words, Congress has specifically provided that money bail may not be set in an amount resulting in pretrial incarceration as a result of indigence. Federal courts ensure compliance with this statute by considering an accused’s financial resources. A wealthy individual may be required to post a high cash bail; but an indigent accused may not. As for those situations where the charged offense may suggest great danger, federal law provides that individuals charged with certain serious offenses may be held without bail pending trial, after a detention hearing. (New Hampshire adopted a somewhat similar pretrial detention statute in the late 1980s, but the statute was repealed within a year.)

In upholding the federal statute against a due process challenge, the US Supreme Court observed in United Sates v. Salerno (1987) that individuals who pose a danger to the public have a number of crucial rights at a detention hearing, including the right to cross-examine witnesses and to be represented by counsel.

Moreover, the Court noted that the government bears the burden of showing dangerousness by clear and convincing evidence, and the statute enumerates specific factors, including the weight of the evidence against the accused, that the judge must consider before imposing pretrial detention.

In this way, in federal criminal cases, the law protects against the pretrial incarceration of the indigent for lack of sufficient funds by prohibiting such a practice outright. Federal law allows for pretrial detention only pursuant to procedures designed to minimize the risk of an erroneous deprivation of liberty.

Bail Reform in Other States

The federal system is not the only one to have largely moved away from a reliance on cash bail. Other jurisdictions have adopted bail reform measures. Effective Jan. 1, 2017, New Jersey has moved away from the cash bail system pursuant to legislation and a statewide referendum.

As Chief Justice Stuart Rabner of the New Jersey Supreme Court has explained, “[t]he existing bail system is not fair to poor defendants who, because they cannot post bail, are cut off from families, may lose their jobs, and may go without access to medication for a period of time. In terms of the charges against them, studies have shown that they face tougher plea offers and pressure to plead guilty because of the amount of time they have already spent in jail, and they receive longer sentences as compared to similarly situated defendants who were able to make bail.”

New Jersey is one of more than a dozen states, including Kentucky and Arizona, which have implemented, or are in the process of implementing, bail reform. Some of these reform practices include requiring that lower-risk individuals be released without having to post any cash. To implement such reforms, some jurisdictions are using purportedly objective and empirical assessment tools that aim to predict the risks posed by an individual’s pretrial release. Another important tool is the increased availability of pretrial services officers (as currently exist in a few locations in New Hampshire, including Merrimack County) for the supervision of individuals released on bail.

Here in New Hampshire, the most basic reform may require no new tools or services, and no revision to the existing statute. It may only require strict fidelity to the existing statute by ensuring that cash is used only as intended by the bail statute – as a condition of release, and not as a tool for pretrial detention.

Read a primer on bail reform by the Criminal Justice Policy Program at Harvard Law School.

RELATED: Crafting Appropriate Bail Conditions Takes Creativity

Behzad Mirhashem

Behzad Mirhashem is the director of the University of New Hampshire School of Law’s Criminal Practice Clinic. He also teaches evidence and criminal law. After obtaining a Ph.D. in physics from the University of Maryland and a JD from Northeastern, Mirhashem began his legal career at NH Public Defender in 1993. Starting in 2008, he worked for the Federal Public Defender in Boston and Concord. He was then briefly in private practice in Manchester before joining the faculty of the law school, where he was previously an adjunct professor.

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