Granite State Governor Has Had Enough: Demands Repeal of 2018 Bail Law
Governor Kelly Ayotte was recently asked her opinion of the 2018 New Hampshire Bail Reform Law, which, like most of the country, loosened up the reins of the pretrial liberty horse requiring less security for the release of those charged with serious crimes. One outlet summarized the purpose of the law succinctly: “to reduce the number of people who were charged with crimes and held in New Hampshire county jails simply because they could not pay their cash bail.”
More: Gov. Ayotte on X
Said Governor Kelly Ayotte recently: “Why did we try to fix a problem that in my view is not a problem?” As another outlet reported, it became clear that New Hampshire’s bail laws followed in part the lead of New York, with police departments arguing that the 2018 law “allowed too many people to be released on bail who should not have been.”
This apparently is a bipartisan view in New Hampshire, with the former Mayor of Manchester having conceded the 2018 law was a problem by supporting what turned out for most to be, like New York bail reform, one in a serious of meaningless reforms, the 2024 “fix,” that represents a march toward an ultimate repeal. A repeal that would turn bail back into the hands of judges we are by law trusting to make the decisions anyway based on the facts and circumstances of each case. As we always like to say: “Everyone loves judicial discretion—until they lose and want to eliminate it.” Now, the current Manchester Mayor also supports a repeal of the 2018 bail reform law.
More: Man charged in Feb. 7 stabbing now out on bail, mayor calls for bail law ‘madness to end’
Importantly, there a few things we didn’t collectively know in 2018, when we, the American Bail Coalition, issued a letter of opposition to the 2018 legislation that lead to the bail reform law – and later urging Governor Sununu to veto the legislation until a more robust comprehensive study and analysis could be had on the current system.
Said the American Bail Coalition on May 31, 2018…
Thus, we would respectfully request that you veto Senate Bill 556 and simultaneously issue an order convening a Governor’s Committee on the Bail System to study best practices and issue a report back to the Governor and the legislature for further action on how to improve the bail system in New Hampshire. The current bill squarely admits more study is needed before reforms are made, and then proceeds to make some reforms without having conducted the recommended study.
What we know now is that there is an easy way to fix to both problems that lead bail reformers to advocate for more drastic changes than were necessary. A revolution of front-end due process has swept most states that solved what we might term the poor people bail problem, most importantly imposing quicker deadlines for bail reviews based on indigency and making sure that people get a meaningful opportunity to make their case for a lower bail or reduced conditions. In Hester v. Gentry, a case for which the U.S. Supreme Court denied certiorari and which is the last word on bail at the U.S. Court of Appeals level, the U.S. Court of Appeals for the Eleventh Circuit assuaged many concerns used by advocates to argue for the 2018 law in the first place, that an “unaffordable bail” somehow violates constitutional principles. As the Court held, it is the meaningful opportunity to plead for no security required that is what the indigent are afforded, which is all that the constitution requires. Towns and cities around the country have followed the lead in complying with a quick and meaningful review of bails.
More: ABC Statement, U.S. Supreme Court Ruling: Hester v. Gentry
On the crime control side, a little legislative nudging of the judiciary, which is within the power of the legislature, has proven effective at reducing recidivism at the pretrial level, i.e., those already on bail when facing a new crime (recidivists).
Senate Bill 6 from Texas a few years began a new bipartisan trend of putting in statute crimes for which a personal bond (release on own recognizance) may not be offered. That trend was demanded by former District Attorney Kim Ogg, who presented data at hearing that showed a new and alarming trend—more than 30 offenders out on eight or more felony bonds at one time, in many cases personal recognizance bonds requiring no security. This year, Texas is adding other requirements, like requiring criminal history reports and prohibiting inferior judicial officers from issuing personal recognizance bonds, in addition to adding additional crimes (prior felons possessing firearms, certain domestic violence charges, terroristic threats, etc.) Judges may of course reduce those bails to very small amounts, as low as say $1, but in essence it eliminates the possibility that someone may get out without any security (and usually this means without a “surety,” which is defined as a third-party taking custody of the defendant and making a legally enforceable financial guarantee. It also eliminates a scheduled or automatic release on recognizance, thus requiring judges to take a hard look at the case.
More: Texas Senate Bill 9 (2025)
This is also the rule in Colorado, which for nearly a year kept the recent Denver stabber in jail, when, for some unexplained reason, the Denver District Attorney consented to a release on personal recognizance. During that year, bonds of $1-500 had been keeping the suspect in custody due to lack of a surety to make the financial guarantee and sign the bond. We criticized the Denver DA’s decision to do that, and of course the Professional Bail Agents of Colorado opposed the legislative inserting of the “prosecutor’s exception” into the statute when it was put in by virtue of the passage of Senate Bill 14-212.
Georgia has also followed the lead and created their own no free bail list. As we have said, this is a way to maintain judicial discretion, and one is we hope based on some data targeting recidivists and high-level offenders.
More: Georgia Doubles Down on Ban of Get-Out-Of-Jail Free Cards
For those not experts in the bail field, we summarize by saying the data correlates most strongly with factors of prior criminality (violent in particular) and prior failures to appear in court. Always remember, 5% of violent defendants generally cause 75% of the violent crime. Those are who you want to ensnare. Also, we have to agree that if bond is not going to simply be revoked upon a new felony charge, which is now within the discretion of a judge and we think appropriate, a person should not, on the other hand, be eligible for release on their own recognizance generally if they already have one or say two pending violent felony charges for which they are on release. Ultimately, these are all legislative decisions that, in essence, force the courts to make sure that custody is actually transferred to the third party (who also has the power to arrest and revoke bond), and that security is required in all such cases.
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