Ayotte vows to put muscle into effort to roll back bail law, repeal magistrates
Three months after a 2024 bipartisan bail reform law took effect, New Hampshire Republicans, including Gov. Kelly Ayotte, are seeking to roll back large parts of it.
But finding consensus on how to do so could be complicated — and a test of Ayotte's legislative influence. Some lawmakers are pushing for major changes; others, including Democrats, are hoping to preserve the system as is.
In addition to a number of tweaks to the state's bail system, the 2024 law created three magistrates – trained attorneys empowered to hold arraignments and set bail terms for defendants who can't get before a judge within 24 hours of their arrest. Those magistrates started hearing cases Jan. 1.
Ayotte and others had been skeptical of the magistrates since then-Gov. Chris Sununu signed the bill in 2024. But a February decision by one of the new magistrates to grant bail to a person accused of stabbing another person with a knife has galvanized the governor and other bail reform opponents. Now, they are calling to end the new system.
'Send me legislation to fix this once and for all,' Ayotte said to lawmakers in her Feb. 13 budget address, referring to that decision.
House Bill 592 is one vehicle to do that. Sponsored by Rep. Ross Berry, a Weare Republican and longtime critic of the original 2018 bail reform law, HB 592 would repeal the magistrate system entirely and instead require people who are arrested to be seen before a judge in a circuit court or superior court within 24 hours of that arrest — with weekends excluded.
The bill would extend that mandatory trial period to 72 hours for people arrested while on release pending trial for another felony or misdemeanor.
And it would give judges broad tools to require the defendant to provide cash bail in order to ensure their future appearance in court.
Democrats and civil rights advocates say the effort is unnecessary, and have raised issues with the example from Manchester, noting that higher courts have upheld the magistrate's decision to release that defendant, and pointing to the existence of self-defense claims.
Supporters of the 2024 law say the magistrate system allows people who are arrested to be seen in front of trained officers of the court — magistrates — in order for them to get bail on weekends and evenings when courts are closed. The magistrates are meant to augment the existing bail commissioner system, in which commissioners make quick decisions over whether to release someone ahead of their arraignment before a judge; instead, a magistrate can simply hold that arraignment.
But Berry argues that system has failed because too many dangerous people have been released who might not have been with tougher bail requirements.
'(Personal recognizance) bail has been basically an adamant failure,' he said at a hearing. 'We do finally have something that will put an end to this.'
Repealing the magistrates — who have been appointed to five-year terms — could have financial repercussions, the New Hampshire Judicial System warned in a fiscal note attached to HB 592.
'This change will increase the number of bail commissioner fees required and necessitate judges to cover hearings during regular court hours that magistrates would have otherwise overseen,' the analysis reads. 'A judge's salary and benefits are twice those of a magistrate. With three magistrates being hired, trained, and starting their five-year terms on January 1, 2025, the Judicial Branch recommends that, if the legislature intends to eliminate the magistrate position, it should be phased out at the end of the current magistrates' five-year term.'
And Democrats say it is premature. 'It is disappointing to have spent so much time really carefully making adjustments to our bail process that haven't been given the time of day to fully work or not work yet,' said Rep. Alissandra Murray, a Manchester Democrat.
HB 592 is moving to the House floor on Thursday after a party-line, Republican-led recommendation of 'ought to pass' by the House Criminal Justice and Public Safety Committee last month. But the committee added additional requirements.
An amendment from the Republican committee majority would make it a 'rebuttable presumption' that an arrested person who violated a condition of their bail after a previous arrest 'will not abide by bail conditions,' and requires the court or bail commissioner to hold them after their arrest. The defendant could then present evidence at the bail hearing to try to refute that presumption and prove they will adhere to their bail.
'We have heard from the people of Manchester that they request that our bail bills be tightened, that too many people were getting out,' said Rep. Terry Roy, a Deerfield Republican and the chairman of the House Criminal Justice and Public Safety Committee. 'Whether or not that is the case, it is the public perception that it is.'
Committee Republicans also added the requirement that a person who is charged with a list of serious felonies and offenses be detained before their arraignment.
The amendment aligns the bill with language in Ayotte's budget trailer bill, House Bill 2. 'I think it's a strong proposal, because it's my proposal, so that helps,' Ayotte said during a Feb. 26 press conference, reacting to the committee vote.
Democrats on the committee have objected to the attempt to repeal magistrates, and have put forward a proposal of their own to clarify how bail should be decided.
A proposed amendment to HB 592 by Democrats would require magistrates and judges to consider a defendant's prior convictions — including for violent crimes — and pending felony charges when deciding whether there is 'clear and convincing evidence that they would be a danger to themselves or others if released. But the amendment would also require courts and magistrates to consider the defendant's employment situation, status as a single parent, and status as a sole income producer for dependents.
The competing ideas underscore a longstanding reality for bail bills in New Hampshire: Proposing them is easier than passing them. A libertarian streak among some House Republicans has upended previous Senate Republican efforts to roll back the 2018 bail law. The bill signed by Sununu in 2024, House Bill 318, was meant to be a final compromise in the effort.
Ayotte said she is prepared to add legislative pressure.
'I'm going to be pushing this bill,' she said Feb. 26. '…I will be making calls — myself and my staff — to talk to any members to answer questions about this bill, because I think it's really important for public safety.'
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