Revision: June 7, 2024, 9:24 a.m.
June 6, 2024
2024-2303-CofC
09/08
Committee of Conference Report on HB 318-FN-A, relative to magistrates, bail commissioners, the standards applicable to and the administration of bail, and making appropriations.
Recommendation:
That the House recede from its position of nonconcurrence with the Senate amendment, and concur with the Senate amendment, and
That the Senate and House adopt the following new amendment to the bill as amended by the Senate, and pass the bill as so amended:
Amend RSA 597:2, I as inserted by section 1 of the bill by replacing it with the following:
I. Except as provided in paragraph III or VI, upon the appearance before the court or magistrate of a person charged with an offense, the court or magistrate shall issue an order that, pending arraignment or trial, the person be:
Amend RSA 597:2, III through III(b)(2) as inserted by section 1 of the bill by replacing it with the following:
III. When considering whether to release or detain a person, the court or magistrate shall consider the following issues:
(a) Safety of the public or the defendant.
(1) Except as provided in RSA 597:1-c, a person who is charged with homicide under RSA 630; first degree assault under RSA 631:1; second degree assault under RSA 631:2; felony level 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; felony level stalking under RSA 633:3-a, VI(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; or computer pornography and child exploitation under RSA 649-B; shall not be brought before a bail commissioner and shall, upon arrest, be detained pending arraignment before the court. Arraignment shall occur no later than 24 hours after the arrest. In the case of a person arrested when the court is not open within the next 24 hours, a decision on bail shall be made by a judge or magistrate within 24 hours of the arrest. At the person’s appearance before the court or magistrate, the court or magistrate shall order that the person be detained pending trial if the court or magistrate determines by clear and convincing evidence that release of the person is a danger to that person or the public. In determining whether release will endanger the safety of that person or the public, the court or magistrate may consider all relevant and material factors presented pursuant to paragraph IV. If the court or magistrate does not find sufficient evidence that the person must be detained, the court or magistrate shall order the person released pursuant to subparagraph I(a) or subparagraph I(b), or, if applicable, temporarily detained pursuant to subparagraph I(d). A person arrested for violating the conditions of his or her bail for an offense listed in this subparagraph shall be held until they can be brought before the court at the first available date. If at a subsequent hearing, the court finds probable cause exists that the person violated the conditions of his or her bail for any of the crimes listed in this subparagraph, the defendant shall be held pending trial.
(2)(A) If a person is charged with any other criminal offense, and the court or magistrate determines by clear and convincing evidence that release will endanger the safety of that person or the public, [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 or magistrate may:
(i) Order preventive detention without bail;[, or, in the alternative, may]
(ii) Order the defendant to comply with restrictive conditions; [including, but not limited to]
(iii) Order electronic monitoring and supervision where the defendant has been accepted for electronic monitoring and supervision by the county; or
(iv) Any combination thereof. [, only if the court determines by clear and convincing evidence that release will endanger the safety of that person or the public.]
(B) In determining whether release will endanger the safety of that person or the public, the court or magistrate may consider all relevant factors presented pursuant to paragraph IV.
(b) Assuring the court appearance of charged persons.
(1) The court or magistrate 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 magistrate, 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 or magistrate may require unless the court or magistrate determines by a preponderance of the evidence that such release will not reasonably assure the appearance of the person as required.
(2) If the court or magistrate 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] 3 years, or twice on the present case, there shall be a rebuttable presumption that release will not reasonably assure the appearance of the person as required, and the person shall be detained. At the bail hearing, the defendant shall be permitted to present evidence and the court or magistrate shall decide whether such person has rebutted the presumption that release will not reasonably assure the appearance of the person as required.
Amend RSA 597:2, VIII as inserted by section 2 of the bill by replacing it with the following:
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, may 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 or magistrate shall direct the clerk to notify by telephone, or other expedient means, the department of corrections, division of field services, of the pending bail hearing. If the department fails or declines to take the person into custody during that period, the person shall be treated in accordance with the provisions of law governing release pending trial. Probationers and parolees who are arrested and fail to advise their supervisory probation officer or parole officer in accordance with the conditions of probations and parole may be subject to arrest and detention as probation and parole violators.
Amend RSA 594:20-a, I as inserted by section 3 of the bill by replacing it with the following:
I. When a person is arrested with or without a warrant, he or she may be committed to a county correctional facility, to a police station or other place provided for the detention of offenders, or otherwise detained in custody. The person shall be taken to appear before a magistrate, circuit court, or a superior court [in the case of felony complaints and misdemeanors and violation level charges that are directly related to those felonies,] without unreasonable delay, to answer for the offense. All persons shall appear no later than 24 hours after arrest, or no later than 36 hours after arrest if arrested between 8:00 a.m. and 1:00 p.m. and the person's attorney is unable to attend an arraignment on the same day, Saturdays, Sundays, and holidays excepted. In the case of a person arrested when the court is not open within the next 24 hours, a decision on bail shall be made by a magistrate within 24 hours of the arrest for any of the crimes listed in RSA 597:2, III(a)(1). Hearings held by a magistrate pursuant to this section may be held telephonically, and the magistrate may conduct such hearing from any location within the state of New Hampshire, without regard to the jurisdiction in which the person was arrested. This section shall not be construed to prohibit telephonic hearings that are otherwise permitted by law or court rule.
Amend the bill by replacing section 5 with the following:
5 Bail and Recognizances; Detention and Sanctions for Default or Breach Conditions. Amend RSA 597:7-a, I-I-a to read as follows:
I. A peace officer may detain an accused until [he] the accused can be brought before a justice or magistrate if [he] the peace officer has a warrant issued by a justice for default of recognizance or for breach of conditions of release or if [he] the peace officer witnesses a breach of conditions of release. The accused shall be brought before a justice or magistrate for a bail revocation hearing within [48] 24 hours[, Saturdays, Sundays and holidays excepted].
I-a. If a person violates a restraining order issued under RSA 458:16, III, or a protective order issued under RSA 633:3-a, or a temporary or permanent protective order issued under RSA 173-B by committing assault, criminal trespass, criminal mischief, or another criminal act, a peace officer shall arrest the accused, detain the accused pursuant to RSA 594:19-a, bring the accused before a justice pursuant to RSA 594:20-a, and refer the accused for prosecution. Such arrest may be made within 12 hours after a violation without a warrant upon probable cause whether or not the violation is committed in the presence of the peace officer.
I-b. The court shall have the authority under paragraph I to set cash or corporate surety bail. The court may only set cash or corporate surety bail in an amount the defendant is able to make.
Amend the bill by replacing section 9 with the following:
9 Bail and Recognizances; General Provisions; Determination of Indigence and Payment of Bail Commissioner Fee. Amend RSA 597:2-b to read as follows:
597:2-b Determination of Indigence and Payment of Bail Commissioner Fee.
I. The arresting officer, at the point of arrest, shall inform the offender of the availability of the services of the bail commissioner. [If the offender elects to utilize the bail commissioner's services and is not indigent, the offender shall pay the bail commissioner's fee directly to the bail commissioner. If the offender elects to utilize the services of the bail commissioner, but claims indigence, the court shall, to the extent of available funding, utilize all possible means to pay the bail commissioner's fee, and shall include written evidence of fee payment in the offender's case file.]
I-a. In any case where the offender has been arrested for a crime of violence against an individual person, including any act of stalking or criminal threatening, and the bail commissioner determines that the offender may be released pending arraignment, the arresting agency shall make a reasonable attempt to contact the alleged victim to inform the alleged victim of the pending release and the conditions of bail.
I-b. The court shall pay each bail commissioner the fees as authorized by RSA 597:20 that each bail commissioner is entitled to within 90 days of the submission of a request for reimbursement from a bail commissioner. The court shall not pay fees that accumulate before January 1, 2025.
II. The court shall develop uniform criteria to evaluate and determine whether an offender is indigent or not indigent for the purpose of the offender's ability to [pay] repay the bail commissioner's fee. Based on the criteria, the court shall render a finding of indigent or not indigent for the purpose of the offender's ability to [pay] repay the bail commissioner's fee.
III. If the court finds that the offender is not indigent for the purpose of [paying] repaying the bail commissioner's fee, the court shall order that the offender [shall] reimburse the court for payment of the bail commissioner's fee. The court may extend the time period for such repayment in its discretion to allow the offender reasonable time to make the repayment, except that in no case shall the time period exceed one year from the date the case was closed.
IV. If the court finds that the offender is indigent for the purpose of [paying] repaying the bail commissioner's fee, the offender shall not be liable to pay the fee.
Amend the bill by replacing all after section 14 with the following:
I. The judicial branch shall determine the amount of funding needed in order to pay for the fees for bail commissioners and to establish the identification cards as directed in sections 4-6 of this act, and that amount is hereby appropriated in the fiscal year ending June 30, 2025, to the judicial branch.
II. The judicial branch shall determine the amount of funding needed to establish 3 new magistrates who will serve at such locations as the chief justice of the supreme court designates and who shall be empowered to perform certain judicial functions relative to bail, arraignments, and warrants, and that amount is hereby appropriated in the fiscal year ending June 30, 2025 to the judicial branch. The judicial branch may file a request for additional funds with the joint legislative fiscal committee for 2 additional magistrates if the judicial branch determines 3 magistrates is insufficient to fulfill the duties of magistrates under RSA 491-B.
III. The sum of $986,000 is hereby appropriated in the fiscal year ending June 30, 2025, to the judicial branch, to develop and implement a judicial branch bail data platform to enable electronic sharing of an individual's bail condition status with law enforcement. Of this amount, the governor shall determine if any remaining discretionary funds appropriated in the American Rescue Plan Act of 2021, Public Law 117-2 or any other federal funds can be used for this purpose and any remainder shall be general funds. The governor is authorized to draw a warrant for the general fund share of said sum out of any money in the treasury not otherwise appropriated.
IV. The sum of $750,000 is hereby appropriated in the fiscal year ending June 30, 2025, to the department of safety, division of state police, to develop and implement a system to electronically share an individual’s bail condition status with law enforcement. Of this amount, the governor shall determine if any remaining discretionary funds appropriated in the American Rescue Plan Act of 2021, Public Law 117-2 or any other federal funds can be used for this purpose and any remainder shall be general funds.
V. The appropriations in this section shall not lapse. The governor is authorized to draw a warrant for said sum out of any money in the treasury not otherwise appropriated.
16 Report Required. Not later than January 1 of each year until 2030, the chief justice, or designee, shall report to the governor, the president of the senate, and the speaker of the house to provide an update as to the following information concerning bail commissioners and magistrates: the number of active members of each group, the anticipated level of attrition through retirement or otherwise, the nature and hours of training received, and any concerns he or she has with the continued viability of the system.
I. RSA 597:2-b, I-a, as inserted by section 9 of this act, and sections 16 and 17 of this act, shall take effect July 1, 2024.
II. Section 11 of this act shall take effect July 1, 2025.
III. The remainder of this act shall take effect January 1, 2025.
The signatures below attest to the authenticity of this Report on HB 318-FN-A, relative to magistrates, bail commissioners, the standards applicable to and the administration of bail, and making appropriations.
Conferees on the Part of the Senate Conferees on the Part of the House
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Sen. Carson, Dist. 14 Rep. Roy, Rock. 31
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Sen. Bradley, Dist. 3 Rep. S. Smith, Sull. 3
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Sen. Soucy, Dist. 18 Rep. A. Murray, Hills. 20
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Rep. Rhodes, Ches. 17
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Rep. Harriot-Gathright, Hills. 10