HB318 (2023) Detail

Eliminating bail commissioners, and relative to the release of a defendant pending trial and establishing new circuit court judge positions.


HB 318-FN-A - AS INTRODUCED

 

 

2023 SESSION

23-0431

04/10

 

HOUSE BILL 318-FN-A

 

AN ACT eliminating bail commissioners, and relative to the release of a defendant pending trial and establishing new circuit court judge positions.

 

SPONSORS: Rep. Lynn, Rock. 17; Rep. Alexander Jr., Hills. 29

 

COMMITTEE: Criminal Justice and Public Safety

 

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ANALYSIS

 

This bill eliminates bail commissioners; provides that judges shall set bail; amends the procedure for the release of a defendant pending trial; and requires the judicial branch to include in its budget funding for 3 new full-time circuit court judges.

 

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

23-0431

04/10

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Twenty Three

 

AN ACT eliminating bail commissioners, and relative to the release of a defendant pending trial and establishing new circuit court judge positions.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

1  Defense and Indemnification of State Officers; Bail Commissioners Removed.  Amend RSA 99-D:2 to read as follows:

99-D:2  Defense and Indemnification.  If any claim is made or any civil action is commenced against a present or former officer, trustee, official, or employee of the state or any agency thereof, including members of the New Hampshire national guard and any justice of the district, [municipal,] probate, superior, or supreme court, or the clerks [or bail commissioners thereof], or any harbor master appointed by the Pease development authority, division of ports and harbors, or officials and employees of the New Hampshire housing finance authority, or directors, officers, and employees of the Pease development authority, members and employees of the lakeshore redevelopment planning commission, or directors, officers, and employees of the land and community heritage investment authority seeking equitable relief or claiming damages for the negligent or wrongful acts and the officer, trustee, official, or employee requests the state to provide representation for him or her, and the attorney general, or, in the case of a claim or civil action commenced against the attorney general, the governor and council, determines that the acts complained of were committed by the officer, trustee, official, or employee while acting within the scope of official duty for the state and that such acts were not wanton or reckless, the attorney general shall represent and defend such person with respect to such claim or throughout such action, or shall retain outside counsel to represent or defend such person, and the state shall defray all costs of such representation or defense, to be paid from funds not otherwise appropriated.  In such case the state shall also protect, indemnify, and hold harmless such person from any costs, damages, awards, judgments, or settlements arising from the claim or suit.  The attorney general or governor and council shall not be required to consider the request of such person that representation be provided for him or her unless within 7 days of the time such person is served with any summons, complaint, process, notice, demand, or pleading the person shall deliver the original or a copy thereof to the attorney general or, in the case of an action against the attorney general, to the governor and council.  As a condition to the continued representation by the attorney general and to the obligation of the state to indemnify and hold harmless, such officer, trustee, official, or employee shall cooperate with the attorney general in the defense of such claim or civil action.  No property either real or personal of the state of New Hampshire shall be subject to attachment or execution to secure payment of or to satisfy any obligations of the state created under this chapter.  Upon the entry of final judgment in any action brought under this chapter, the governor shall draw a warrant for said payment out of any money in the treasury not otherwise appropriated, and said sums are hereby appropriated.  The attorney general shall have the authority to settle any claim brought under this chapter by compromise and the amount of any such settlement shall be paid as if the amount were awarded as a judgment under this chapter.  Indemnification by the state under this section shall be for the actual amount of costs, damages, awards, judgments, or settlements personally incurred by any such officer, trustee, official, or employee, and the state shall not pay any amounts for which payment is the obligation of any insurance carrier or company under a policy or policies of insurance or any other third party under a similar obligation.

2  District Courts; Pleas by Mail.  Amend RSA 502-A:19-b, III(c)-(d) to read as follows:

(c)  A person arrested pursuant to this section shall be given the option to pay the outstanding fine and fees in full to [a bail commissioner] the court.  Upon such payment, the matter shall be deemed closed, and the civil bench warrant vacated.  All payments received by [bail commissioners] the court pursuant to this section shall be transmitted to the [court or the] division of motor vehicles within 5 business days.  [The bail commissioner shall be entitled to a fee for services as set forth in RSA 597:20.]

(d)  Any person arrested pursuant to this section who is unable to pay all outstanding fines and fees prior to release shall be released on personal recognizance and ordered to appear before the district court in the jurisdiction where the arrest or the underlying violation occurred at the next scheduled session of that court.  Prior to release, the defendant shall provide an accurate residential and mailing address and telephone number to [a bail commissioner] the court.  [The bail commissioner shall be entitled to a fee for services as set forth in RSA 597:20.]

3  Bail and Recognizances; Bail Commissioners; Subdivision Heading Amended.  Amend the subdivision heading preceding RSA 597:15 to read as follows:

[Bail Commissioners] General Provisions

4  Bail and Recognizances; Release of a Defendant Pending Trial.  RSA 597:2 is repealed and reenacted to read as follows:

597:2  Release of Defendant Pending Trial.  On and after January 1, 2024, all persons arrested with or without a warrant for a criminal offense, or for driving or operating a motor vehicle under the influence of drugs or liquor under RSA 256-A:2 or RSA 265-A:3, and not released upon a summons to appear in court shall be brought before a judge as provided in this section and bail for such persons shall be set by a judge.  

I.  Except as provided in RSA 597:1-c or in paragraphs III or VI of this section, upon the appearance before the court of a person charged with an offense, or for driving or operating a motor vehicle under the influence of drugs or liquor under RSA 256-A:2 or RSA 265-A:3, the court shall issue an order that, pending arraignment or trial, the person be:

(a)  Released on his or her personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph III;

(b)  Released on a condition or combination of conditions pursuant to the provisions of paragraph III;

(c)  Detained; or

(d)  Temporarily detained to permit revocation of conditional release pursuant to the provisions of paragraph VIII.

II.  Except as provided in RSA 597:1-d, a person charged with a probation violation shall be entitled to a bail hearing.  The court shall issue an order that, pending a probation violation hearing, the person be:

(a)  Released on his or her personal recognizance or upon execution of an unsecured appearance bond, pursuant to the provisions of paragraph III;

(b)  Released on a condition or combination of conditions pursuant to the provisions of paragraph III; or

(c)  Detained.

III.  When considering whether to release or detain a person, the court shall consider the following issues:

(a)  Safety of the public or the defendant.

(1)  A person who is charged with homicide under RSA 630:1; first degree assault under RSA 631:1; second degree assault under RSA 631:2; domestic violence under RSA 631:2-b; aggravated felonious sexual assault under RSA 632-A:2; felonious sexual assault under RSA 632-A:3; kidnapping under RSA 633:1; stalking under RSA 633:3-a; trafficking in persons under RSA 633:7; robbery under RSA 636:1, III; possession, manufacture, or distribution of child sexual abuse images under RSA 649-A; computer pornography and child exploitation under RSA 649-B; or felonious use of firearms under RSA 650-A:1, shall, upon arrest, be held in custody pending his or her appearance before the court, which shall occur without unreasonable delay and, in any event, within 24 hours from the time of arrest, excluding Saturdays, Sundays, and holidays.  At the person’s appearance before the court, the court shall order that the person be detained pending trial if the state proves to the satisfaction of the court that there is probable cause to believe the person committed the crime with which the person is charged and proves by clear and convincing evidence that release of the person will endanger the safety of that person or the public.  In determining whether release will endanger the safety of that person or the public, the court may consider all relevant factors presented pursuant to paragraph IV.  If the court does not find by clear and convincing evidence that the person must be detained, the court shall order the person released pursuant to paragraph I(a) or paragraph I(b), or, if applicable, temporarily detained pursuant to paragraph I(d), or detained for a period of not more than 72 hours from the time of his or her arrest, excluding Saturdays, Sundays, and holidays, based upon the rebuttable presumption the person charged is a danger to the public.

(2)  If a person is charged with any other criminal offense, an offense listed in RSA 173-B:1, I, or a violation of a protective order under RSA 458:16, III, or after arraignment, is charged with a violation of a protective order issued under RSA 173-B, the court may order preventive detention without bail, or, in the alternative, may order restrictive conditions including but not limited to electronic monitoring and supervision, only if the state proves that there is probable cause to believe the person committed the crime with which the person is charged and proves by clear and convincing evidence that release will endanger the safety of that person or the public.  In determining whether release will endanger the safety of that person or the public, the court may consider all relevant factors presented pursuant to paragraph IV.  

(b)  Assuring the court appearance of charged persons.

(1)  The court shall order the pre-arraignment or pretrial release of the person on his or her personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court, or cash or corporate surety bail, subject to the condition that the person not commit a crime during the period of his or her release, and subject to such further condition or combination of conditions that the court may require unless the court determines pursuant to subparagraphs (b)(2) or (b)(3) that detention of the person pending trial is necessary to reasonably assure the appearance of the person as required.

(2)  If the court determines by clear and convincing evidence based on the totality of the circumstances, including the nature of the charges and the defendant’s background, that there is a substantial risk the person will not appear as required and that there are no alternatives to detention that will reasonably assure the appearance of the person, the court shall order the person to be detained pending trial.

(3)  If the court determines by a preponderance of the evidence that a person has failed to appear on any previous matter charged as a felony, class A misdemeanor, or driving or operating while impaired, or a reasonably equivalent offense in an out-of-state jurisdiction, 3 or more times within the past 5 years, or has failed to appear twice in the present case, there shall be a rebuttable presumption that release will not reasonably assure the appearance of the person as required and, if the presumption is not rebutted, the person shall be detained pending trial.

(4)  In determining the amount of the unsecured appearance bond or cash or corporate surety bail, the court may consider all relevant factors bearing upon a person's ability to post bail.

(5)  The court shall not impose a financial condition that will result in the pretrial detention of a person solely as a result of that financial condition.  

(c)  Failure of a person to abide by previous bail conditions.  If there is probable cause to believe that, while on release pending resolution of a previous offense, the person committed a felony, class A misdemeanor, or driving or operating while impaired, was released on bail, and thereafter was arrested for a third felony, class A misdemeanor, or driving or operating while impaired, there shall be a rebuttable presumption that the person will not abide by a condition that the person not commit a new offense and, if the presumption is not rebutted, the person shall be detained pending trial.  The court may consider any relevant factors in making its determination.

IV.(a)  The rules of evidence shall not apply at bail hearings and the court may consider any reliable evidence that is relevant to the issues to be determined at such hearings.  Evidence in support of pretrial release or preventive detention shall be made by offer of proof at the initial appearance before the court.  At the initial appearance or within five days after the initial appearance, the defendant may request a subsequent bail hearing where, except in cases in which a rebuttable presumption in favor of detention exists, the state shall present live testimony to the court to support its burden of proof, and the defendant may present live testimony to the court to rebut any presumption that the defendant is a danger to himself or herself or to the public, or is at-risk of re-offending while on bail, or is a risk of failing to appear.  The defendant also may present live testimony on any other matter relevant to the defendant’s position regarding pretrial release.  Absent a showing of good cause or substantially changed circumstances, a defendant who does not request a further bail hearing at the initial appearance or within five days thereafter shall not be entitled to have the court reconsider the matter of bail.

(b)  At any subsequent hearing, such testimony may be presented via video conferencing, unless the court determines that witness testimony in court is necessary.  A request by the defendant for in-court testimony shall be made by oral motion at the initial hearing or by written motion prior to any subsequent hearing.  Any order granting the defendant's request shall be distributed to the parties at least 48 hours prior to any subsequent hearing.

(c)  There shall be a rebuttable presumption that an alleged victim of the crime shall not be required to testify at the bail hearing.  Nothing in this section shall preclude an alleged victim from voluntarily testifying at such hearing.  The state may present evidence of statements made in the course of an investigation through a law enforcement officer.

V.  A no-contact provision contained in any bail order shall not be construed to:

(a)  Prevent counsel for the defendant from having contact with counsel for any of the individuals protected by such provision; or

(b)  Prevent the parties, if the defendant and one of the protected individuals are parties in a domestic violence or marital matter, from attending court hearings scheduled in such matters or exchanging copies of legal pleadings filed in court in such matters.

VI.  If a person is charged with violation of a protective order issued under RSA 173-B or RSA 633:3-a, the person shall be detained without bail pending arraignment pursuant to RSA 173- B:9, I(a).

VII.  In a release order issued pursuant to this section, the court shall include a written statement that sets forth:

(a)  All of the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the person's conduct; and

(b)  The provisions of RSA 641:5, relative to tampering with witnesses and informants.

VIII.  A person charged with an offense who is, or was at the time the offense was committed, on release pending trial for a felony or misdemeanor under federal or state law, release pending imposition or execution of sentence, appeal of sentence or conviction, or completion of sentence, for any offense under federal or state law, or probation or parole for any offense under federal or state law, except as provided in RSA 597:1-d, III, shall be detained for a period of not more than 72 hours from the time of his or her arrest, excluding Saturdays, Sundays and holidays.  The law enforcement agency making the arrest shall notify the appropriate court, probation or parole official, or federal, state, or local law enforcement official.  Upon such notice, the court shall direct the clerk to notify by telephone the department of corrections, division of field services, of the pending bail hearing.  The court shall hold a bail hearing promptly after the expiration of said 72 hour period and may consider the actions taken or to be taken by such other court, probation or parole official, or law enforcement official in determining the conditions of release or detention to be imposed in the case before the court.  

IX.  Upon the appearance of a person charged with a class B misdemeanor, the court shall issue an order that, pending arraignment, the person be released on his or her personal recognizance, unless the court determines pursuant to paragraph III that such release will endanger the safety of the person or the public.  The court shall appoint an attorney to represent any indigent person charged with a class B misdemeanor denied release for the purpose of representing such person at any detention hearing.

X.  A person detained by a circuit court has the right to:

(a)  In the first instance, a hearing in circuit court within 36 hours after the filing of the motion, excluding weekends and holidays on a motion to reconsider the original detention order; and

(b)  A decision upon a de novo appeal, pursuant to RSA 597:6-e, II, to the superior court within 36 hours of the filing of the appeal, excluding weekends and holidays.

5  Bail and Recognizances; Review and Appeal of Release or Detention Order.  Amend RSA 597:6-e, II to read as follows:

II.  Subject to RSA 597:2, X, the person or the state may file with the superior court a motion for revocation of the order or amendment of the conditions of release set by a [municipal or] district court[,] or by a justice[, or by a bail commissioner].  The motion shall be determined promptly.  However, no action shall be taken on any such motion until the moving party has provided to the superior court certified copies of the complaint, affidavit, warrant, bail slip, and any other court orders relative to each charge for which a release or detention order was issued by a justice[, or a bail commissioner].  In cases where a district court justice has made a finding, pursuant to RSA 597:2, IV that the person poses a danger to another, the superior court shall, after notification to both parties, the police department that brought the charges in district court, and the victim, conduct a hearing and make written findings supporting any modifications and reasons for new conditions or changes from the district court order.  The reviewing court shall take into consideration the district court's written findings, orders, pleadings, or transcript when making a modification.

6  Uniform Law on Intrastate Fresh Pursuit; Court Hearing.  Amend RSA 614:8 to read as follows:

614:8  Court Hearing.  If an arrest pursuant to RSA 614:7 is made in obedience to a warrant, the disposition of the prisoner shall be as in other cases of arrest under a warrant; if the arrest is without a warrant, the prisoner shall without unnecessary delay be admitted to bail, if the offense is bailable, by a judge or magistrate [or bail commissioner] of either the jurisdiction where the offense was committed or where the prisoner was apprehended, by taking security by way of recognizance of the appearance of such prisoner before the court having jurisdiction of such criminal offense.

7  Judicial Branch; Judicial Positions; Funding.  The budget for the judicial branch for the biennium commencing July 1, 2023 shall include funding sufficient to provide for the appointment of 3 full-time circuit court judges in addition to the number of full-time circuit court judges that were authorized for the biennium ending June 30, 2023.

8  Repeal.  The following are repealed:

I.  RSA 597:2-b, relative to determination of indigence and payment of bail commissioner fee.

II.  RSA 597:6-e, I, relative to the release ordered by a bail commissioner.

III.  RSA 597:15, relative to the authority of the superior court to appoint bail commissioners.

IV.  RSA 597:15-a, relative to the authority of the circuit court to appoint bail commissioners.

V.  RSA 597:17, relative to the term and identification card for a bail commissioner.

VI.  RSA 597:18, relative to the powers of a bail commissioner.

VII.  RSA 597:18-a, relative to educational requirements for a bail commissioner.

VIII.  RSA 597:19, relative to return of recognizances taken by a bail commissioner.

IX.  RSA 597:20, relative to bail commissioner's fees.

X.  RSA 597:21, relative to bail on Sunday.

9  Effective Date.  

I.  Section 7 of this act shall take effect July 1, 2023.

II.  The remainder of this act shall take effect January 1, 2024.

 

LBA

23-0431

1/3/23

 

HB 318-FN-A- FISCAL NOTE

AS INTRODUCED

 

AN ACT eliminating bail commissioners, and relative to the release of a defendant pending trial and establishing new circuit court judge positions.

 

FISCAL IMPACT:      [ X ] State              [ X ] County               [    ] Local              [    ] None

 

 

 

Estimated Increase / (Decrease)

STATE:

FY 2023

FY 2024

FY 2025

FY 2026

   Appropriation

$0

$0

$0

$0

   Revenue

$0

$0

$0

$0

   Expenditures

$0

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

Funding Source:

  [ X ] General            [    ] Education            [    ] Highway           [    ] Other

 

 

 

 

 

COUNTY:

 

 

 

 

   Revenue

$0

$0

$0

$0

   Expenditures

$0

Indeterminable Increase

Indeterminable Increase

Indeterminable Increase

 

 

 

 

 

METHODOLOGY:

This bill eliminates bail commissioners and provides that judges shall set bail.  The bill amends the procedure for the release of a defendant pending trial and requires the Judicial Branch to include in its budget funding for 3 new full-time circuit court judges.

 

The Judicial Branch states, for the cases involving charges under the list of crimes described in the bill, the Court would need to apply criteria described in the bill.  The bill provides for the addition of three full-time Circuit Court judges for the biennium commencing July 1, 2023.  The  Branch assumes the bill would result in a substantial increase in the number of bail-related hearings conducted by judges.  Additional judges beyond the three designated in the bill would be necessary to handle the increase. In addition, a substantial burden would be placed on court staff to implement the requirements of the bill.  The fiscal impact would be seen at each of the 32 Circuit Court and 11 Superior Court locations.  Each court location would require additional staff, with the greatest increase in staffing needed at the Circuit courts with the busiest criminal dockets, including the Circuit Courts in Nashua, Manchester, Concord, Laconia, Salem, Hampton, Derry, Dover, Keene and Merrimack and the Superior Courts in Merrimack and Hillsborough Counties.  The Branch provided the following estimated cost of the three additional Circuit Court judges included in the bill:

 

 

FY 2024

FY 2025

FY 2026

Total Cost per Judge

$323,009

$324,481

$326,051

Cost for 3 Circuit Court Judges

$969,027

$973,443

$978,153

 

The New Hampshire Association of Counties indicates this bill would likely require individuals be held for a longer, but indeterminable amount of time before they went before a judge.  This would likely increase costs to the county correctional facilities, however the Association is unable to  determine what the additional cost would be.

 

AGENCIES CONTACTED:

Judicial Branch and New Hampshire Association of Counties

 

Links

Action Dates

Date Body Type
Jan. 26, 2023 House Hearing
Feb. 3, 2023 House Exec Session

Bill Text Revisions

HB318 Revision: 37205 Date: Jan. 9, 2023, 10:09 a.m.

Docket


Jan. 24, 2023: Executive Session: 02/03/2023 09:00 am LOB 202-204


Jan. 18, 2023: Public Hearing: 01/26/2023 09:00 am SH Reps Hall


Jan. 9, 2023: Introduced (in recess of) 01/05/2023 and referred to Criminal Justice and Public Safety