Positive Changes on the Way for NH Bail Commissioners
The recent debate over whether bail reform is succeeding or failing in New Hampshire has also cast a harsh spotlight on New Hampshire’s unfair and outdated system to pay bail commissioners. While a separate committee is considering changes to the bail reform law itself, I recently served on a study committee that looked into the role of bail commissioners and how to ensure they are paid in a more reliable and timely way. Here’s what we decided and why.
First Things First: What Exactly Is a Bail Commissioner?
Bail commissioners are officers of the court with the power to set a cash bail or to release a person accused of a crime on personal recognizances. They also set conditions for release, such as maintaining good behavior or staying away from a victim.
Working mainly during off-hours when courts are closed, bail commissioners are called in by local police after a person is arrested. They assess the accused’s condition and previous record and decide whether to require a cash bail, release them on their own recognizances, or—if they present a danger to others—to hold them until they can be brought before a judge. For this service (a legacy of the English court system), they are allowed to collect a $40 fee from the accused. If this sounds like a lot, keep in mind that they are not allowed to charge mileage—even though some calls can involve trips of 20 miles or more. They are also not allowed to contact or bill defendants who fail to pay for their services.
So What’s the Issue?
While bail commissioners have always had to write off fees from defendants who were unable to pay, a recent change to New Hampshire’s bail reform law has led to many more people accused of crimes to claim to be unable to pay or “indigent”. Under the new state bail reform law passed in 2018, people accused of crimes can no longer be held in jail simply because they are indigent or have a drug problem. While there is anecdotal evidence that this policy is both solving a problem (people being held in jail for nonviolent crimes because they can’t pay even a small cash bail) and causing a problem (offenders who go back into the community to commit additional crimes), bail commissioners have been caught in the crossfire as an increasing number of defendants who request the services of a bail commissioner are declaring they have no money. Under New Hampshire law, bail commissioners must provide their service regardless of the ability of the accused to pay. For some bail commissioners, this has led to more than 50% of their calls going unpaid—a situation that has also affected the ability of the court system to attract and retain bail commissioners. This in turn has led to a shortage of bail commissioners
Making a bad situation worse is that bail commissioners generally get little or no help from the courts to help them collect. Lack of certainty when it comes to getting paid has led many bail commissioners to resign and makes it difficult to recruit new ones to replace them.
What Is the Study Committee Recommending?
After hearing testimony from bail commissioners, judges, court administrators, law enforcement officers, and other stakeholders, the study committee agreed that a problem exists and issued a report with recommendations for a fix. These recommendations will be included in legislation to filed by Sen. Sharon Carson. The other members of the committee—Rep. Joe Alexander, Rep. Peter Schmidt, and myself—will join Sen. Carson as co-sponsors. While the legislation itself is still in the works, these recommendations include:
Redesign the process to ensure bail commissioners are paid regardless of the accused’s ability to pay the fee. While people able to pay the fee directly at the time the service is providing will still be required to pay the bail commissioner directly, in cases where indigency is claimed bail commissioners will be paid by the court system. A copy of the indigency claim will then become part of the offender’s file record and is given to the judge at the offender’s court appearance. The court then will assess indigency based on a revised definition. If the offender is found indigent by the judge, the bail commissioner’s fee cannot be collected—but the bail commissioner will still be paid by the court. If a determination of not indigent is declared, the offender will responsible for reimbursing the court for the $40 bail commissioner fee.
Issue an official identification card to bail commissioners.
Develop a pilot program in a rural portion of the state that would allow bail commissioners to perform their service electronically in cases involving long distances or travel in bad weather.
While this legislation won’t address the larger issue of bail reform itself, it will help ensure that people who perform a valuable service to the court will be more fairly reliably and compensated.