While the idiom “you’ve got to crack a few eggs to make an omelet” works as a cooking tip, it’s a terrible approach to public policy because the “eggs” that are broken are usually innocent people. There is no more glaring example of this than New Hampshire’s recent attempt at bail reform.
Bail is not meant to determine a person’s guilt or innocence, but it should focus on several key factors. Is the defendant dangerous? Is there a likelihood of recidivism? Does the defendant have a history of failing to appear in past cases? And is the defendant a flight risk? Contrary to what some may believe, in New Hampshire this is how our judges and bail commissioners approached the issue of bail. That is until 2018 when Gov. Sununu signed into law SB556.
The law’s intent was to dictate to judges and bail commissioners that they will have to consider what a defendant could reasonably afford when setting bail, which was essentially whatever was in the defendant’s pocket at the time of arrest. Supporters were trying to achieve two things: Prevent ruining someone’s life by having them sit in jail because they’re too poor to make bail, and ensure the public’s safety by holding people who are dangerous.
Front line experts in law enforcement, prosecutors and victims’ advocates believe we are failing on point two. Point one should only be considered after looking at the key factors of danger, recidivism, past failures to appear and flight risk.
Manchester Mayor Joyce Craig and Police Chief Capano were part of a recent news conference to address the strain of homelessness and addiction on the city’s support services. Craig and Capano expressed concern that current New Hampshire bail provisions are negatively impacting communities.
Capano said “bail reform has emboldened repeat offenders.” He shared how one of his officer’s recently broke his leg trying to detain a man arrested and released for fighting with police a few days earlier. “It’s very frustrating on a personal level when you see one of your officers get hurt by somebody that should never have been back out on the street, and they were,” Capano said.
Craig stood with her police officers, stating bail reform is fueling crime, drug use and homelessness in the city, declaring “At some point, there’s got to be a consequence or we’re going to see repeat behavior.”
Craig is right, but those who cautioned against these reforms were ignored, and we’re living with consequences of ill-conceived feel good measures that were foolishly implemented. Two recent cases reflect how dangerous these “reforms” have made our communities.
Earlier this year, Matthew Gedney was arrested and charged with prowling and resisting arrest by Goffstown police. Gedney had several outstanding warrants across New Hampshire. However, he was released on no cash bail. The very day Gedney was due in court for the Goffstown charges, he was arrested in Alexandria for breaking into a home and stealing cash at gunpoint.
Shortly after the press conference with Capano and Craig, Manchester police arrested three adult males in Veterans Park. One was charged with possession of a controlled drug. The second was charged with having outstanding bench warrants for theft by unauthorized taking, failure to appear and criminal threatening. The third was arrested on a warrant for driving after suspension, and for being in possession of a prescription drug (not prescribed to that individual).
Three individuals with a history of recidivism, failure to appear and threatening behavior. Surely this time appropriate bail was set, right? Wrong.
All three were released on personal recognizance bail, prompting Chief Capano to state: “This is yet another unintended consequence of bail reform, which is adversely impacting our city. Our officers are doing all they can to enforce New Hampshire laws, but they are too often being released faster than officers are able to complete reports.”
This bleeding-heart approach to bail reform was doomed to fail. The risk factors became secondary, and the design was permeated on conditions that did not factually exist in New Hampshire. I understand, no one wants to spend time in jail, nor do we want to keep people locked up for indefinite amounts of time pending trial. Therefore, the New Hampshire court system moves as quickly as possible and bail had to be denied because the defendant demonstrated one or more of the commonsense risk factors.
As a former police officer, I understand the bail process all too well. Every so often, patrol officers receive a stack of bench warrants for people who failed to appear for their court date. Most require the defendant be “re-arrested” and held for an immediate court appearance (next business day) or issued a new bail provision, which includes a new court date (and usually cash surety).
Outside of the fact countless man hours are wasted trying to track down these individuals, usually because the address listed was no longer valid (if it ever was), but serving a warrant is one of the most dangerous activities a police officer is required to perform. Most people do not relish the thought of going to jail. Officers are unnecessarily being placed in harm’s way, and our communities are less safe.
Sullivan County Attorney Marc Hathaway stated: “People who are objectively dangerous are being released into the community, and when they violate the conditions of their release, it’s extremely difficult to detain them … bail reform is putting public safety at risk. … It’s no exaggeration to say there’s a crime wave out on bail.”
One of the leading authors of this bail reform bill, Buzz Scherr, responded to this criticism by stating: “I think what needs adjustment is police attitudes and prosecutor attitudes.” Spoken like a master omelet maker.
We understand the need for an equitable approach to pretrial confinement, but these new provisions are not about parity. They place police officers, victims and the community at unnecessary risk. This is a failed social experiment. Seeing what we are currently witnessing, giving these bail measures ‘more time to work the kinks out’ would not only be unwise, but dangerous.