Should there be a law against jailing a person because they cannot afford bail, so long as the person is not a danger to the community or likely to skip court?

Rep. Brian Stone is the primary sponsor of a new bill that would prohibit courts from jailing a defendant just because he or she cannot afford bail.

The bill, HB 1395, requires courts to consider the financial resources of a person when setting bail. A judge could not jail someone just because he or she does not have money to pay bail. Instead, a judge could only jail a defendant if the judge finds by a "preponderance of the evidence" – at least 50% - that the person is a danger to the community or likely to miss the court date.

Current bail laws in NH

Under current law, judges have broad decision-making authority when it comes to setting bail. The primary factors a judge must consider are whether or not a defendant is likely to reappear in court and whether or not the defendant is dangerous.

Some judges may consider a homeless or transient individual less likely to reappear in court, which motivates them to set bail. If a defendant cannot afford bail, he or she is jailed until trial.

There is also no "preponderance of the evidence" standard for judges in the current bail law.

Debtors prison in NH?

Supporters of HB 1395 argue that it is unjust to jail poor defendants simply because they cannot afford bail. Pre-trial jail time interferes with employment, housing, and childcare.

Advocates for the poor point to the case of Jeffrey Pendleton as an example. Pendleton was arrested for misdemeanor marijuana possession in 2016. As a homeless person, he could not afford the $100 bail. The judge therefore sent Pendleton to the Valley Street jail in Manchester before trial. Guards later found Pendleton dead in his cell from a drug overdose.

Leave bail to the courts?

Opponents of HB 1395 argue that homeless and transient defendants are more likely to miss a court date and reoffend.

While some courts may have the resources to implement pre-trial monitoring programs to ensure low income defendants reappear in court, other courts – particularly in the rural North Country – do not have these resources.

Bail and jail keep these individuals off the streets and ensure justice is served.

Do you support HB 1395? Let us know in the comments below.