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With bail commissioners vastly underpaid, lawmakers seek remedies

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With bail commissioners vastly underpaid, lawmakers seek remedies

Sep 28, 2023 | 5:00 am ET
By Ethan DeWitt
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With bail commissioners vastly underpaid, lawmakers seek remedies
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Some in the New Hampshire House want to look into changing the way bail commissioners are paid. (Getty Images)

When Franklin-area police departments arrest someone in the middle of the night, they often call Paul Leary to set that person’s bail. And when Leary, a New Hampshire bail commissioner, wakes up to help them, he’s supposed to receive $40 in fees from the defendant. 

That’s how New Hampshire’s current system works. But it requires the recently arrested defendants to have the money to pay him. Many don’t, and when they don’t, Leary leaves empty-handed. 

The cost can add up. In 7½ years of the largely volunteer position, Leary has missed out on more than $50,000 in total fees, he estimates. 

“$51,039 to be exact,” he said during a hearing last Thursday. “And that was as of 9/13/23.” 

Leary’s problems are common among the more than 100 bail commissioners in the state, who help release defendants on bail when no court is open to hear them. Leary reports a 62 percent success rate at recovering fees; other commissioners say their chances are more like 50-50. Meanwhile, those commissioners have their own expenses: the gas it takes to drive to an in-person hearing with a defendant, the home printer and ink to print out certain forms, the paper to print them on, and the postage to send them off to the court – none of which are reimbursed by the state.

“We are not issued anything,” said Trixie Lefebvre, a recently retired bail commissioner from Londonderry. “Our equipment is pen and paper.”

Some in the House want to look into changing the pay scheme. A bipartisan group of lawmakers on the House Criminal Justice and Public Safety Committee is contemplating legislation next year to guarantee that bail commissioners get paid by the courts for their hearings, and to possibly pay back commissioners who have missed out. 

“We ask a lot of these folks,” said Rep. Terry Roy, a Deerfield Republican and the committee chairman. “Without them, (the system) would literally come to a screeching halt.” 

The proposal comes as the committee takes a broader look at New Hampshire’s bail reform law, which passed in 2018 and for years has spurred attempts by some to roll it back. In May, negotiators for the Republican-led House and Senate could not agree on a bill attempting to pare back bail reform, causing the legislation to die. This fall, the House committee is returning to the issue, holding work sessions on several retained bills they hope to turn into legislation that might also pass the Senate.

The committee will look at a number of issues, including how to introduce electronic bail records and whether to deny bail for people charged with violent offenses until they are arraigned by a judge. But Roy is also focused on the bail commissioners themselves, and how lawmakers can improve their working conditions.

Last week, a handful of those commissioners testified to those frustrations. Top among them was the pay.

“It’s very unattractive to try to recruit people to become bail commissioners when they find out you get paid 50 percent of the time,” said Judy Cook, a bail commissioner for Milford District Court. 

Most bail commissioners do not expect high monetary rewards: While the position requires formal training, it is largely a volunteer calling, they testified. Many of the current commissioners are retirees, because the late hours and interruptions to weekend time tend to drive away those already in the workforce. 

“You have a limited supply of people,” Cook said. “People with full-time jobs are not going to want to do this because they have to be up all hours of the day.” 

But even with the expectation that the job is voluntary, the expenses can add up, Cook said. For some courts, Cook can email the paperwork for the defendant. For others, she must print and mail them over, or use a fax machine. 

Some bail commissioners drive to police departments in person to see defendants; others stay at home and hold telephonic bail hearings. Each approach comes with its own headaches. 

And because the defendant may not immediately have the money on hand, recovering it can be a long ordeal. There is no standard playbook for what bail commissioners should do when they are not paid. Cook makes a note on the form she returns to the court that she didn’t receive the money, and trusts that the court system will follow up with the defendant to collect the fees.

Some commissioners are paid in cash the night of the arrest. Others use Square or other banking apps and ask the defendant to pay with a card at the police station. Cook says she doesn’t trust that approach, noting that defendants can cancel the transaction once released. 

Those who aren’t paid are at the mercy of the courts to receive reimbursement. Some local courts, such as those in Portsmouth and Manchester, are better than others at securing the payments, Cook says. When the court does receive the payment, Cook will receive checks in the mail from the New Hampshire Judicial System. 

But much of the time, bail commissioners expect not to see the money at all. 

To Leary, the $40 is not the point of the role. A former police chief in Northfield, Leary became a bail commissioner when he retired after police chiefs pleaded with him to volunteer. He decided to do so out of an understanding of the reliance that police departments have on bail commissioners – particularly those willing to work at all hours.

But even if the money is not the objective, the expenses have become hard to ignore, he said. The price of stamps, gas, and supplies has increased in recent years, Leary noted. Leary bought an iPad to help with reading court documents, particularly those that include poor hand-writing. He’s had to replace that iPad and his portable printer, at a cost of thousands of dollars. 

One step Leary isn’t willing to take: installing a landline so he can send faxes from home. He’d rather try other methods, like emailing police departments the documents and asking them to fax the courts for him. 

“You learn how to get around what has to be done to make it happen,” he said. 

Roy and others on the criminal justice committee say they want to change how bail commissioners are paid. During discussion last week, representatives agreed that requiring the judicial branch to pay the commissioners directly and then recoup the fees from the defendants would be more fair. 

Roy said that approach would likely require lawmakers to set aside “seed money” to the judicial branch to ensure that payments were funded at the beginning. Courts would then be incentivized to collect the money from defendants and recoup their expenses, he said.

Rep. David Meuse, a Portsmouth Democrat, agreed, calling the current reimbursement system “unusual.” “It would be like asking police to collect the fines of the people they arrest, and that would be how we would actually pay police salaries,” he said to the committee.

And Meuse warned that not improving the system could disrupt the criminal justice process.

“The longer that we let this whole situation fester, we’re going to have fewer and fewer experienced bail commissioners, and at some point the whole system starts to crash,” he said. 

At its heart, Leary said, the issue is a simple one. 

“We’re the only ones in the judiciary that don’t get paid on a regular basis, and when we go out to do the work, we don’t know whether we will or we won’t.”