By Alyssa Dandrea
Rochester police arrested 36-year-old Jonathan Candilieri on Sept. 27 for the fifth time since May after he repeatedly failed to appear in court for felony crimes. A judge again ordered him released on personal recognizance bail.
A few days later, Manchester police arrested 45-year-old Enrique Castro after they allege he assaulted a child and threatened to hit another with a hammer. Castro, who had numerous prior contacts with police before the Oct. 3 domestic violence call, was again released on personal recognizance.
And, earlier this year, when Concord police arrested 22-year-old Christopher Holland as part of a drug raid at two rooming houses on Rollins Street, he was soon free on bail conditions. Within 11 days of his arrest, he was back in custody, accused of injuring two city police officers and causing minor injuries to a third while high on drugs. That April day marked Holland’s fifth arrest of 2019.
In the year since a sweeping bail reform law took effect in New Hampshire, law enforcement officers have routinely cited cases where defendants were granted release only to end up back in the system days or months later on new charges. Some law enforcement leaders have publicly expressed concern that the law has created this “catch-and-release” environment where officers are re-arresting the same few people over and over again.
“We are not doing justice for anyone who is repeatedly released on bail, defaults, is called back to court and then re-released only to face new charges down the road,” Concord police Lt. Sean Ford said in a recent interview. “We can’t keep letting people out with no accountability for repeat crimes and not correct their behavior. That does a disservice to defendants who are racking up charges left and right.”
Anecdotally, attorneys, lawmakers, jail superintendents and civil liberties activists have plenty to say about bail reform in New Hampshire and whether it’s working as intended, but statewide data to support their claims remains elusive without a standardized system in place to track the day-to-day effects.
While proponents say the law ensures people aren’t being held simply because they can’t afford their release, others argue judges’ interpretations of the law aren’t consistent across the board, particularly as they evaluate the level of danger defendants may pose to themselves and the community at large. Prosecutors and law enforcement officers say repeat chances at bail have led some defendants to re-victimize – something they argue could have been avoided if preventative detention was ordered at the outset.
For example, this past summer, Manchester police charged Travis Demers, 21, with three counts of violation of privacy after he allegedly videotaped or took pictures of women without their knowledge in bathrooms at the Mall of New Hampshire and Savers thrift store. He was released on bail only to re-offend Oct. 3 at the Hannaford supermarket on Hanover Street, where he was observed exiting the women’s bathroom. At the time, he was wanted on an arrest warrant for failing to appear in Merrimack County Superior Court in Concord on a robbery charge. After multiple offenses, he was finally detained.
Quantifying how often cases like the one in Manchester occur in New Hampshire’s communities is not an easy task. While individual police departments, jails, county attorneys and public defenders keep their own data, there is no statewide system in place to track the short or long-term effects of bail reform more than a year after the law took effect.
During a meeting last week of the Interbranch Criminal and Juvenile Justice Council, Administrative Circuit Court Judge David King said the judicial branch’s case management system does not specifically track information related to bail, meaning there would need to be an extensive case-by-case review.
In a request for further information, Superior Court Chief Justice Tina Nadeau confirmed to the Monitor there is no statewide system in place to prove or discount theories about whether more defendants are failing to appear at scheduled court hearings.
“There is nothing to rectify because our case management system is not a data collection system or a search engine,” she said. “To make any changes, we would need to completely overhaul it at great cost. This is simply not feasible.”
But there is a glimmer of hope that data collection could begin in the near future. The Attorney General’s Office recently received a grant, at the request of the council and the courts, to collect some of the relevant data long sought as part of the bail reform process. The Pretrial Justice Institute, based in Maryland, will assist New Hampshire in collecting and analyzing pretrial detainee data from all 10 of the state’s county jails.
In the interim, some agencies, including county prosecutors and public defenders, are reporting an increase in the number of defendants failing to appear. Between Jan. 1 and Sept. 30, 2019, the public defender’s office said the failure to appear rate in felony cases rose more than 2%, from 7.7% to 9.8%, compared to the same nine-month period in 2017, before the law took effect. This accounted for an increase of about 105 failures to appear statewide. In the state’s district courts, a similar story has played out. Similarly, Grafton County prosecutors say between 30% to 40% of defendants aren’t showing up to court.
While officials say those numbers are cause for concern, they provide just a glimpse into what is happening at individual agencies.
The swift passage of bail reform absent a means to collect statewide data isn’t sitting well with both some skeptics and proponents, especially after so much discussion at public meetings in the past two years about the importance of hard numbers.
Strafford County Attorney Tom Velardi, who attended last week’s council meeting, said in a follow-up interview that he was repeatedly told by the authors of bail reform and its supporters to “wait for the numbers” before passing judgment on the law.
“To hear that we haven’t started collecting this data because we don’t even know how to do it is not an acceptable answer,” he said. “I was surprised to the point of shock that the dialogue surrounding this is still in its infancy stage. If we all agree that we need the data, then let’s get the data.”
Velardi said the county attorneys were largely excluded from early conversations on bail reform and did not have an appointee to committees tasked with planning for the rollout and execution of the new law. Moving forward, he said, there need to be more constructive conversations to move the ball forward so that a year from now stakeholders aren’t circling around the same problems.
At last week’s council meeting, Velardi, the current president of the New Hampshire Association of County Attorneys, reintroduced a proposed amendment to the bail reform statute that all nine top prosecutors agreed would start to address concerns about certain defendants cycling through the system. The amendment would create a tiered approach to bail and remove the presumption in certain cases that a defendant should be released on personal recognizance. Those cases of concern include when offenders violate court-ordered conditions of bail or commit new crimes while out on bail.
“Our approach was very modest to fill that hole. It’s certainly not the silver bullet to fix this bail modification as a whole,” Velardi said.
The ability to monitor defendants who are released pretrial remains a significant challenge, especially for more rural counties that don’t have community supervision programs.
Tuftonboro Police Chief Andrew Shagoury, the immediate past president of the New Hampshire Association of Police Chiefs, said the county attorneys’ proposal is a move in the right direction but doesn’t solve some persisting issues and unintended consequences created by bail reform. For example, Shagoury previously called for more specific criteria to guide judges who must weigh a suspect’s level of danger, but a bill passed during the last legislative session did the opposite and stripped the law of all descriptors, he said.
The thought at the time was that judges would be given more flexibility if there was no list. However, Shagoury said, the lack of guidance has had the reverse effect and allowed dangerous people to walk rather than be detained.
This year, a Senate bill created a state bail commission that includes stakeholders from all sectors of the criminal justice community. The commission is tasked with reviewing and offering recommendations for further legislative improvements to bail reform. The group will meet for the first time on Friday.
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