No. 2018-0637

Katherine E. Hedges
An associate at Hage Hodes in Manchester practicing civil litigation and corporate law.

Dec. 13, 2019
Affirmed

  • Whether RSA 597:2 permits a trial court to set cash bail at an amount the defendant cannot afford solely because that defendant is a flight risk.

 

The Court held that RSA 597:2 permitted the trial court to set an unaffordable cash bail when the preponderance of the evidence established that the defendant may not otherwise be reasonably assured to appear for trial, even if the defendant is not dangerous. The defendant had been charged with drug-related offenses that were alleged to have occurred while she was released on her own recognizance on another charge and while under the terms of a suspended sentence for a drug possession conviction. The State also presented evidence that the defendant had previously been convicted of “bail-jumping” and had a record that included two failures to appear. The defense sought nonmonetary conditions for bail,

The trial court originally set bail at $25,000, which was later reduced to $10,000, after finding that it was unlikely that any conditions would ensure the defendant’s appearance. The court specifically found that the defendant’s release would not be dangerous. It imposed the conditions solely because it found by a preponderance of the evidence that the defendant would fail to appear for trial. The underlying charges had been resolved by a plea, but the Court heard the appeal after finding the case was not moot “because it presents legal issues that are of pressing public interest and are capable of repetition yet evading review.”

The defense argued that RSA 597:2 precluded the court from setting cash bail at an amount the court knows the defendant cannot pay unless there is clear and convincing evidence that the defendant’s release would endanger the safety of the public or the defendant. The State argued that RSA 597:2 permitted the trial court to set an unaffordable cash bail that the court knows will result in detention when the preponderance of the evidence establishes the defendant poses a flight risk.

Federal courts had interpreted the federal bail statute, 18 U.S.C. § 3142(c)(2) (2012), which is worded similarly to RSA 597:2, to allow the imposition of unaffordable bail when the court determined the amount of the bond was necessary to reasonably assure the defendant’s attendance at trial. The Court found that RSA 597:2 similarly only prohibited the imposition of unaffordable bail when the defendant is neither a flight risk nor dangerous.

The Court found that RSA 597:2, IV(a), which permits preventative detention after finding clear and convincing evidence that release will endanger the defendant or the public, did not govern de facto detentions that occurred when unaffordable bail was set, as bail orders are governed by RSA 597:2, III. The plain language of RSA 597:2, III recognizes that some bail orders will result in detention because “RSA 597:2, III(d) expressly states that ‘[i]f, as a result of the court’s decision, a person is detained, the court shall issue on the record findings of fact that document the basis for its decision.’” The Court analyzed other provisions of RSA 597:2, III and found that they similarly recognized the trial court’s ability to set unaffordable bail to assure attendance at trial after determining by a preponderance of the evidence that the defendant is a flight risk.

 

David M. Rothstein, deputy director public defender, Concord, for the defendant. Gordon J. MacDonald, attorney general (Lisa L. Wolford, assistant attorney general), for the state.