Revision: May 23, 2024, 10:13 p.m.
Sen. Carson, Dist 14
May 23, 2024
2024-2178s
09/08
Floor Amendment to HB 318-FN-A
Amend the title of the bill by replacing it with the following:
AN ACT relative to magistrates, bail commissioners, the standards applicable to and the administration of bail, and making appropriations.
Amend the bill by replacing section 1 with the following:
1 Bail and Recognizances; Release of a Defendant Pending Trial. Amend RSA 597:2, I-IV to read as follows:
I. Except as provided in paragraph 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:
(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 or magistrate 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 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 a preponderance of the 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) 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 or magistrate may order preventive detention without bail, or, in the alternative, may [order] recommend restrictive conditions including, but not limited to electronic monitoring and supervision, only if the court or magistrate determines 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 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 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)(A) 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.
(3) In determining the amount of the unsecured appearance bond or cash or corporate surety bail, the court or magistrate may consider all relevant factors bearing upon a person's ability to post bail.
(4) The court or magistrate shall not impose a financial condition that will result in the pretrial detention of a person solely as a result of that financial condition, unless the court or magistrate determines by clear and convincing evidence that the nature of the allegations presents a substantial risk that the person will not appear and that no reasonable alternative will assure the person's appearance. The defendant shall be afforded the opportunity to be heard.
(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, there shall be a rebuttable presumption that the person will not abide by a condition that the person not commit a new offense. The court or magistrate shall not impose a financial condition that will result in the pretrial detention of the person solely as a result of that financial condition unless the court or magistrate determines by clear and convincing evidence after a hearing that no reasonable alternative or combination of conditions will assure that the person will not commit a new offense. The court or magistrate may consider any relevant factors in making its determination.
IV.(a) Evidence in support of preventive detention shall be made by offer of proof at the initial appearance before the court or magistrate. At that time, the defendant may request a subsequent bail hearing where live testimony is presented to the court.
(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.
Amend the bill by inserting after section 1 the following and renumbering the original sections 2 through 11 to read as 6 through 15, respectively:
2 Bail and Recognizances; Release of a Defendant Pending Trial. Amend RSA 597:2, VII-IX to read as follows:
VII. In a release order issued pursuant to this section, the court or magistrate 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, 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 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.
IX. Upon the appearance of a person charged with a class B misdemeanor, the court or magistrate shall issue an order that, pending arraignment, the person be released on his or her personal recognizance, unless the court or magistrate determines pursuant to paragraph III that such release will endanger the safety of the person or the public. The court or magistrate 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.
3 Arrests in Criminal Cases; Release or Detention; Place and Time of Detention. Amend RSA 594:20-a, I to read as follows:
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. The person arrested shall be entitled to be heard on the question of bail. Such hearing 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. An arrestee shall be entitled to an in-person, de novo appeal of the magistrate's bail determination, to be held in the judicial district in which he or she was arrested or in which the crime is alleged to have occurred.
4 Bail and Recognizances; Review and Appeal of Release or Detention Order. Amend RSA 597:6-e to read as follows:
597:6-e Review and Appeal of Release or Detention Order.
I. If a person is ordered released by a bail commissioner or magistrate, the person, or the state, shall be entitled to a hearing, if requested, on the conditions of bail before a justice within 48 hours, Sundays and holidays excepted.
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, by a justice or magistrate, 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.
III. The person, or the state pursuant to RSA 606:10, V, may appeal to the supreme court from a court's release or detention order, or from a decision denying revocation or amendment of such an order. The appeal shall be determined promptly.
5 Bail and Recognizances; Detention and Sanctions for Default or Breach Conditions. Amend RSA 597:7-a, I 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].
Amend the bill by replacing section 11 with the following:
11 New Chapter; Judicial Training. Amend RSA by inserting after chapter 490-J the following new chapter:
CHAPTER 490-K
JUDICIAL TRAINING
490-K:1 Judicial Training Coordinator.
A judicial training coordinator position shall be created on or before July 1, 2025, to work under the direction of the chief justice of the supreme court. The judicial training coordinator shall develop high quality judicial branch training and continuing education programs and work to provide judges, magistrates, bail commissioners, administrators, and court staff with a reasonable opportunity to fulfill any mandatory orientation and initial required training as well as continuing educational requirements set by the chief justice of the supreme court.
490-K:2 Initial Judicial Training Requirements.
Any person who holds the position of judge or magistrate in this state, and all nonjudicial employees of the judicial branch with a hire date on or after July 1, 2025, shall complete an orientation and training program within 3 months of hire, as directed by the chief justice of the supreme court. The minimum initial training for judges may be as follows:
I. Orientation for new judges on procedures and functions of the applicable court and relevant procedural and substantive law;
II. Education for new judges on major legal subjects and practical skills needed by them and appropriate to the jurisdiction of the court in which they serve;
III. At least one hour of training devoted to the topics of legal and judicial ethics, professionalism, preventing implicit bias, mental health, and domestic violence.
490-K:3 Judicial Continuing Education Requirements.
Any person who holds the position of judge, magistrate, court administrator, clerk, or director of the administrative office of the court in this state, shall be required to complete continuing education as the chief justice of the supreme court directs.
Amend the bill by replacing all after section 13 with the following:
14 New Chapter; Magistrates. Amend RSA by inserting after chapter 491-A the following new chapter:
CHAPTER 491-B
MAGISTRATES
491-B:1 Appointment and qualifications. The chief justice of the supreme court, in consultation with the chief justice of the superior court and the administrative judge of the circuit court, shall appoint at least 3 magistrates, subject to appropriation by the legislature. Such magistrates shall serve at such locations as the chief justice of the supreme court may determine under this chapter. Magistrates shall be judicial branch employees.
491-B:2 Duties.
I. At the discretion of the chief justice of the supreme court, in consultation with the chief justice of the superior court and the administrative judge of the circuit court, magistrates may have the following powers:
(a) To determine the release or detention of defendants on all days of the week and at all times of day pursuant to RSA 597:2;
(b) To conduct arraignment hearings and issue decisions on arraignments;
(c) To conduct bail hearings and issue decisions on bail and other decisions regarding release or detention of persons pending trial pursuant to RSA 597:2;
(d) To issue arrest warrants or other processes of arrest;
(e) To issue search warrants;
(f) To administer oaths and affirmations; and
(g) To perform such other acts or functions specifically authorized by the chief justice of the supreme court not inconsistent with the New Hampshire constitution or any state or federal laws.
II. Magistrates may only perform the powers listed in paragraph I(b) through I(g) if they are licensed to practice law in the state of New Hampshire.
III. The magistrates shall provide to any person bailed by the magistrate pursuant to the authority granted by this chapter information on local services that are available to the person relating to homelessness, hunger, mental health, and substance use issues.
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.
III. The appropriations in paragraph I and II shall not lapse. The governor is authorized to draw a warrant for said sum out of any money in the treasury not otherwise appropriated.
I. Sections 15 and 16 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.
2024-2178s
AMENDED ANALYSIS
This bill:
I. Establishes magistrates and provides them certain authority.
II. Makes various amendments governing the standards applicable to and the administration of bail, as well as the penalties for violations of bail conditions.
III. Authorizes counties to establish criteria concerning a criminal defendant's ability to repay the costs of electronic monitoring.
IV. Makes amendments to the amount of the bail commissioner's fee and the process to pay this fee, and makes other amendments to the duties and educational requirements for bail commissioners.
V. Establishes a judicial training coordinator and establishes training requirements for judges and certain judicial employees.
VI. Makes appropriations to the judicial branch.