Revision: Nov. 15, 2023, 12:15 p.m.
Rep. Roy, Rock. 31
Rep. Harriott-Gathright, Hills. 10
November 15, 2023
2023-2469h
09/05
Amendment to SB 252-FN
Amend the title of the bill by replacing it with the following:
AN ACT relative to the release of a defendant pending trial, directing the establishment of an electronic monitoring program for criminal defendants released on bail, and making an appropriation therefor.
Amend the bill by replacing all after the enacting clause with the following:
1 Bail and Recognizances; Release of a Defendant Pending Trial. Amend RSA 597:2, I-III(a) to read as follows:
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:
(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, magistrate, or, if applicable, a bail commissioner 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 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 that there is substantial evidence to believe 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 that there is substantial 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). In any case where a protective order is issued by the court or magistrate related to any of the crimes listed in this subparagraph, a person may be released only with electronic monitoring in order to ensure the safety of any alleged victim. Any violation of the conditions of the release with electronic monitoring shall be immediately reported to the law enforcement agency in the jurisdiction where the violation occurred, which, if there is probable cause to establish such violation, shall cause the person to be arrested forthwith. 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, such violation shall be prima facie evidence of dangerousness and the defendant shall be held pending trial. The court may seek reimbursement of the cost of electronic monitoring in accordance with the provisions in paragraph VI(b).
(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 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, except as provided in paragraph VI. 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.
2 Bail and Recognizances; Release of a Defendant Pending Trial. Amend RSA 597:2, VI to read as follows:
VI. If a person is charged with violation of a protective order issued under RSA 173-B or RSA 633:3-a[,]:
(a) The person shall be detained without bail pending arraignment by the court pursuant to RSA 173-B:9, I(a). Arraignment for a person charged with violation of a protective order issued under RSA 173-B or RSA 633:3-a shall not be heard by a magistrate.
(b) If the court releases the person, the court shall order electronic monitoring of the person while released.
(1) The court shall develop uniform criteria to evaluate and determine whether a person is indigent or not indigent for the purpose of the person's ability to repay the cost of electronic monitoring. Based on the criteria, the court shall render a finding of indigent or not indigent for the purpose of the person's ability to repay the cost of electronic monitoring.
(2) If the court finds that the person is not indigent for the purpose of repaying the cost of electronic monitoring, the court shall order that the person reimburse the court for payment of the cost of electronic monitoring unless the person's case terminates without a conviction for any offense. For purposes of this subparagraph, a conviction shall include any plea of guilty or nolo contendere to any originally charged offense or any greater or lesser related offense. If the person's case terminates without a conviction for any offense, the person shall not be liable to pay the cost of the electronic monitoring. The court may extend the time period for repayment in its discretion to allow the person time to make the repayment, except that in no case shall the time period exceed one year from the date the case was closed.
(3) If the court finds that the person is indigent for the purpose of repaying the cost of electronic monitoring, the person shall not be liable to pay the cost of electronic monitoring.
(c) A law enforcement officer shall have probable cause to arrest any person who is released pursuant to this paragraph with electronic monitoring upon probable cause that the person has violated the monitoring conditions imposed by the court. The court employee or agent who is tasked with monitoring the released person shall inform the law enforcement agency in the appropriate jurisdiction of any violation of the monitoring conditions.
(d) Unless pursuant to a search warrant, a law enforcement officer shall not be provided access to any data associated with the electronic monitoring of the released person, including but not limited to location data, for any purpose other than the investigation of non-compliance with the monitoring conditions imposed by the court.
3 New Section; Bail and Recognizances; General Provisions; Electronic Monitoring. Amend RSA 597 by inserting after section 2-b the following new section:
597:2-c Electronic Monitoring Program to be Established.
I. In this section, "electronic monitoring" means tracking the location of an individual through the use of physical equipment or software that is capable of determining or identifying the monitored individual's presence or absence at a particular location, including but not limited to:
(a) Radio frequency signaling technology, which detects if the monitored individual is or is not at an approved location and notifies the monitoring agency of the time that the monitored individual either leaves the approved location or tampers with or removes the monitoring device; or
(b) Active or passive global positioning system technology, which detects the location of the monitored individual and notifies the monitoring agency of the monitored individual's location.
II. The chief justice of the superior court and the administrative judge of the circuit court shall obtain the ability to equip and monitor defendants who have been arrested and released on bail with electronic monitoring. The chief justice of the superior court and the administrative judge of the circuit court may contract with a private company, enter into a memorandum of understanding with a government agency, or utilize their own personnel, subject to legislative appropriation, to obtain such ability to both equip and monitor.
4 Appropriation; Department of Safety; Division of State Police and the New Hampshire Judicial Branch.
I. The sum of $750,000 is hereby appropriated in the fiscal year ending June 30, 2024, 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.
II. The sum of $986,000 is hereby appropriated in the fiscal year ending June 30, 2024, 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.
III. The appropriations in paragraphs I and II shall not lapse. The governor is authorized to draw a warrant for said sums out of any money in the treasury not otherwise appropriated.
I. Sections 1 and 2 of this act shall take effect January 1, 2025.
II. The remainder of this act shall take effect June 30, 2024.
2023-2469h
AMENDED ANALYSIS
This bill makes various amendments to the standards governing the release of a defendant pending the resolution of criminal charges. This bill further requires the chief justice of the superior court and the administrative judge of the circuit court to obtain the ability to equip and monitor defendants who have been arrested and released on bail with electronic monitoring and provides appropriations to the department of safety and the judicial branch for this purpose.