HB 318-FN-A - AS AMENDED BY THE SENATE

3Jan2024... 2460h

11Apr2024... 1404h

05/16/2024   1872s

2023 SESSION

23-0431

04/10

HOUSE BILL 318-FN-A

AN ACT relative to bail commissioners, the standards applicable to and the administration of bail, and making an appropriation.

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

COMMITTEE: Criminal Justice and Public Safety

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AMENDED ANALYSIS

This bill:

I.  Makes various amendments governing the standards applicable to and the administration of bail, as well as the penalties for violations of bail conditions.

II.  Authorizes counties to establish criteria concerning a criminal defendant's ability to repay the costs of electronic monitoring.

III.  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.

IV.  Establishes a judicial training coordinator and establishes training requirements for judges and certain judicial employees.

V.  Makes an appropriation to the judicial branch.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

3Jan2024... 2460h

11Apr2024... 1404h

05/16/2024   1872s 23-0431

04/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Twenty Three

AN ACT relative to bail commissioners, the standards applicable to and the administration of bail, and making an appropriation.

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

1  Bail and Recognizances; Release of a Defendant Pending Trial.  Amend RSA 597:2, III(a)-(b) to read as follows:

(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. At the person’s appearance before the court, the court shall order that the person be detained pending trial if the court 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 may consider all relevant and material factors presented pursuant to paragraph IV.  If the court does not find sufficient evidence that the person must be detained, the court 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 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 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 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 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 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 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 may consider all relevant factors bearing upon a person's ability to post bail.

(4) 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, unless the court 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.

2  Bail and Recognizances; Detention and Sanctions for Default or Breach of Conditions.  Amend RSA 597:7-a, II to read as follows:

II. A person who has been released pursuant to the provisions of this chapter and who has knowingly committed an act that he or she knew, or reasonably should have known, violated a condition of his or her release [is] may be subject to a revocation of release, an order of detention, and either a prosecution for contempt of court or, unless such conduct violates RSA 642:8, class A misdemeanor breach of bail.

3  New Paragraph; Bail and Recognizances; Release of a Defendant Pending Trial.  Amend RSA 597:2 by inserting after paragraph X the following new paragraph:

XI(a) Each county may develop criteria to evaluate and determine whether a person is indigent or not for the purpose of the person’s ability to repay the cost of electronic monitoring. Based on the criteria, the county may render a finding of indigent or not for the purpose of the person’s ability to repay the costs of electronic monitoring.

(b) If the county finds that the person is not indigent for the purpose of repaying the cost of electronic monitoring, the county may order that the person reimburse the county for payment of the cost of electronic monitoring. The county 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. The county may seek reimbursement in other ways as determined by the county.

(c) If the county finds that the person is indigent for the purpose of repaying the cost of electronic monitoring, the county may waive the cost of electronic monitoring.

4  Bail and Recognizances; Bail Commissioners; Fees.  Amend RSA 597:20 to read as follows:

597:20  Fees.  The bail commissioners in such cases shall be entitled to a fee of [$40] $60.  However, clerks of court or members of their staffs who are bail commissioners shall be entitled to collect such fee only when called while not on active duty.  In jurisdictions where the bail commissioner is a full-time salaried police officer, constable, sheriff, deputy sheriff, state police employee, or anyone else authorized to execute police powers, such person shall not receive the fee established in this section, but instead such amount shall be remitted to the town or city in which the district court is situated.  If the defendant is indigent, the fee shall be waived.

5  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.  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.

6  Bail and Recognizances; Bail Commissioners; Term and Identification Card.  Amend RSA 597:17 to read as follows:

597:17  Term and Identification Card.

I.  Bail commissioners shall be commissioned for 5 years and continue in office until their successors shall have qualified.  A bail commissioner's appointment may be revoked for cause at any time during the term of his or her appointment by the chief justice of the supreme court or the chief justice's designee.

II.  The [administrative judge of the superior court or the circuit court] judicial branch shall issue an identification card to each qualified bail commissioner in the state.  The identification card shall be made of a durable material similar to that of a driver's license, and shall contain a photograph of the bail commissioner, the terms and dates of the bail commissioner's appointment, and any other information deemed necessary by the judicial branch.  The judicial branch may enter into an agreement, through an interagency memorandum of understanding or any other appropriate mechanism, with the department of safety, division of motor vehicles to facilitate the production and issuance of the identification card.

7  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 January 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, 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 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, 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.

8  Bail and Recognizances; Bail Commissioners; Educational Requirements for Bail Commissioners.  RSA 597:18-a is repealed and reenacted to read as follows:

597:18-a  Educational Requirements for Bail Commissioners.

I.  The judicial training coordinator, in consultation with the chief justice of the superior court and the administrative judge of the circuit court, shall develop an education program to ensure that new bail commissioners are adequately trained and that existing bail commissioners have current information regarding the status of the laws affecting bail commissioners and the powers and duties of bail commissioners.  This education program shall include the laws specific to bail and the conditions that may be imposed by the bail commissioners.

II.  Upon appointment, each bail commissioner shall receive at least 16 hours of training.  Training may be in person, remote, or on the job training by shadowing another bail commissioner for a period of time as determined by the courts.  

III.  Each bail commissioner shall undergo 8 hours of annual training that shall include any changes to the law made by the general court or as a result of court decisions.  An updated copy of all laws concerning bail commissioners and a copy of the latest edition of the Bail Commissioner's Handbook shall be provided to each bail commissioner at this annual training.

IV.  Bail commissioners shall be paid for time spent during training as follows:

(a)  Bail commissioners shall be paid a $50 stipend for each 8 hour block of training.  Any in person training requiring less than 8 hours shall nonetheless be paid for a minimum 8 hour block.  Remote training less than 8 hours may be prorated based upon the $50 per 8 hour block standard.

(b)  If the training for newly appointed bail commissioners exceeds 16 hours, the newly appointed bail commissioners shall not be paid for more than 2, 8-hour blocks.

9  New Section; Bail and Recognizances; Bail Commissioners; Duties.  Amend RSA 597 by inserting after section 18-a the following new section:

597:18-b  Duties.

I.  The bail commissioners shall provide to any person bailed by the bail commissioner under this chapter information on local services that are available to the person relating to homelessness, hunger, mental health, and substance use issues.

II.  The bail commissioners shall notify any person bailed by the bail commissioners under this chapter that any violations of a protective order are non-bailable.

10  Funding.

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 appropriation in paragraph I shall not lapse.  The governor is authorized to draw a warrant for said sum out of any money in the treasury not otherwise appropriated.

11  Effective Date.  

I.  Sections 10 and 11 of this act shall take effect July 1, 2024.

II.  The remainder of this act shall take effect January 1, 2025.

LBA

23-0431

Amended 4/30/24

HB 318-FN-A- FISCAL NOTE

AS AMENDED BY THE HOUSE (AMENDMENT #2024-1404h)

AN ACT relative to magistrates, bail commissioners, the standards applicable to and the administration of bail, and making appropriations.

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

METHODOLOGY:

This bill:

• Establishes 10 magistrates, provides the duties and requirements for magistrates and makes a non lapsing general fund appropriation for the fiscal year ending June 30, 2025 to the Judicial Branch for the amount needed to establish the magistrate positions.

• Makes various amendments governing the standards applicable to and the administration of bail.

• Establishes an electronic monitoring program for certain criminal defendants and provides that each county shall obtain the ability to equip and monitor defendants who have been arrested and released on bail with electronic monitoring. Counties may recover the cost their electronic monitoring programs through a charge to defendants who have been released on bail with electronic monitoring.

• Establishes a Judicial Training Coordinator and establishes training requirements for judges and certain judicial employees and bail commissioners.

• Increases bail commissioners' fees from $40 to $60 and provides that the court shall pay each bail commissioner's fees on a monthly basis.  Includes a non lapsing appropriation for the fiscal year ending June 30, 2025 to the Judicial Branch for the amount needed to pay bail commissioners' fee and establish identification cards for bail commissioners.

• Makes non lapsing appropriations of $750,000 to the Department of Safety and $986,000 to the Judicial Branch for the fiscal year ending June 30, 2025 for development of a system to electronically share an individual’s bail condition status with law enforcement.

The Judicial Branch provided the following estimates of the fiscal impact of the bill based on the effective dates:

The Department of Safety states it is not possible for the Department to calculate the fiscal impact of the changes to the bail system set forth in this bill.  The most significant costs could come from housing and transporting defendants as well as the time associated with attempting to notify victims pending release of an individual arrested for a crime of violence against an individual person.  The bill appropriates $750,000 in FY 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.

The New Hampshire Municipal Association (NHMA) indicates that typically, arrest processing takes between 2-3 hours and timing is highly dependent on the availability of a bail commissioner or judge.  In the case of offenses where a bail commissioner is called, the longest period of time is usually waiting for the bail commissioner to arrive at the police department.  In areas where few commissioners reside, that wait time can exceed an hour.  Depending on the location of the department, the court, the county correctional facility, and the time of day, arrests resulting in action pursuant to this legislation may or may not result in increased costs associated with processing.  Additionally, alterations in the type of bail available for certain crimes may or may not see changes in local expenditures based on the likelihood of further or future offenses being committed, requiring additional expenditures related to investigation of those offenses.  Similarly, the creation of an electronic monitoring system beyond what is already available may or may not result in additional expenditures depending on the need to perform additional (or fewer) investigations.  The NHMA states the bill would appear to affect municipal expenditures in the proposed amendment to RSA 597:2-b.  This would change police processes to require an attempt to contact an alleged victim in cases of a crime of violence against an individual person, including any act of stalking or criminal threatening, where a bail commissioner has granted the defendant personal recognizance (PR) bail.  The bill would require

that the police department spend the hour following the issuance of PR attempting to contact the

alleged victim to let him/her know of the bail conditions and would require that the defendant not be released until after the department contacts the victim or the hour has elapsed.  The NHMA makes the following assumptions:

• Defendants may not be left unsupervised.

• Contact to the alleged victim via telephone or in person would require departments to attempt to make in person contact if telephone contact fails.

• The defendant would not be transported alongside an officer attempting to make in person contact with his/her alleged victim.  Therefore, at least two officers would be necessary in any instance where a bail commissioner grants PR bail to a defendant arrested for one of the qualifying offenses.

NHMA indicates there may be additional costs associated with searching for alleged victims, including wear on equipment, gasoline costs, and other costs.  Additionally, NHMA notes there may be no additional costs in instances where officers are already on duty and no additional wage costs would be incurred and/or when the alleged victim may be reachable by phone or immediately available in person and no additional costs would be incurred.

The New Hampshire Association of Counties states this bill would require all counties to set up an electronic monitoring program for those on pretrial/bail.  The Association indicates that the counties anticipate the cost to establish this type of electronic monitoring program would be approximately $15 million a year.  This cost would include hardware, software, and personnel to operate and execute the program.  While there would be some reimbursement from persons on electronic monitoring, this reimbursement would be only for the hardware and not the additional expenses that go with the program.  In addition, the Association indicates, while there would be insignificant costs to the county attorney’s offices; the costs to the correctional facilities are indeterminable.  Such costs may include increased salary and technology costs to execute hearings outside of the current schedule with the expanded magistrate program.  In addition, the requirement for certain offenses to go in front of a judge, could lead to increased holding costs at the county correctional facilities.

AGENCIES CONTACTED:

Department of Safety, Judicial Branch, New Hampshire Association of Counties and New Hampshire Municipal Association