Professor Buzz Scherr discusses his recent Union Leader opinion piece on bail reform, the data that New Hampshire's laws have been successful, and the murder of Daniel Whitmore. Produced and Hosted by A. J. Kierstead
Read Professor Scherr's article: https://www.unionleader.com/opinion/op-eds/albert-scherr-the-convenient-and-false-narrative-about-a-manchester-tragedy/article_2888eaa2-474d-50d4-a222-4174ece92b1b.html
Learn more about the International Criminal Law & Justice program at https://law.unh.edu/iclj
Get an email when the latest episode releases and never miss our weekly episodes by subscribing on Apple Podcast, Google Play, Stitcher, and Spotify!
UNH Franklin Pierce School of Law is now accepting applications for JD and Graduate Programs at https://law.unh.edu
Legal topics include criminal, bail, reform, data, courts, prosecutor
View the Transcript
A. J. Kierstead (Host):
This is The Legal Impact, a podcast presented by the University of New Hampshire Franklin Pierce School of Law, now accepting applications for JD and graduate programs. Learn more and apply at law.unh.edu. Opinions discussed are solely the opinion of the faculty or host. They do not constitute legal advice or necessarily represent the official views of the University of New Hampshire and UNH Franklin Pierce School of Law. I'm your host, A.J. Kierstead, and today I'm joined by Professor Buzz Scherr, Director of the International Criminal Law and Justice Program. Learn more about that program at law.unh.edu/iclj. Welcome back to the show.
Professor Buzz Scherr:
Great to be back.
A. J. Kierstead (Host):
So you recently penned an opinion piece over at the Union Leader titled, The Convenient and False Narrative about a Manchester Tragedy. So this is centered around a specific case over something we have talked about on the show before regarding bail reform, which you have been active with in New Hampshire since there was a big reform movement back in 2018, which we will dive into during the course of this episode in case anyone missed that. But I really think it's important to have case studies when diving into law, because it really outlines maybe there are things that are correct, things that are wrong in the law over time.
I also want to dive into is changes to the bail reforms that were initially made for whether you agree with or disagree with, but that's just the normal path that laws take when they've been put into place. And let's maybe start off with, when we talk about bail reform, what does that tend to mean nowadays?
Professor Buzz Scherr:
It means a lot of different things around the country. In New Hampshire, what it means is about five years ago now, four or five years ago, Senator Dan Felts was the prime sponsor of a bill to really dramatically change our bail system. I was the one who wrote that bill for Senator Feltes, and it basically cleared away all the underbrush and all the trees and said, "Let's treat bail the way it should be treated." That is, we want to hold people who are at significant risk of never showing up for trial, and we want to hold people who are clearly and convincingly dangerous. Other than that, we don't want to hold people in jail, because they don't have a hundred bucks to meet their bail. We want to take money out of the bail system, because we had data at that time that showed we were holding people in jail on $500 bail, $250 bail.
Not because we thought they wouldn't show up, not because we thought they were dangerous. Just the judge had kind of this informal menu in his mind or her mind that, "Oh, it's an assault, simple assault, so $250." And that had been in place for years. And so people were sitting in jail for six months on a charge which they wouldn't get six months if they were convicted of. And some people were sitting in jail on charges that they were acquitted of or got dismissed, and the system had lost its purpose and its focus on what mattered in terms of bail. Bail is not to punish people. Bail's to make sure they show up and make sure that dangerous people are not running around on the streets.
A. J. Kierstead (Host):
And it has an obvious inequity for individuals of various income statuses and whether they could afford it. So the people that would be the most affected by not showing up to work, because they don't make very much money, are the ones that also would be more likely to be put into jail 'cause they can't afford the bail.
Professor Buzz Scherr:
And therefore not show up for work.
A. J. Kierstead (Host):
Yeah, right.
Professor Buzz Scherr:
Exactly. And so that reform went in place about five years ago now, maybe a little bit more, but no, about five years ago. And there were two bail commissions in the subsequent two years, two that had all the stakeholders on them to tweak it. And we tweaked it both years and it's been in place. Now, the police, even though they agreed to the tweaks both times have kept coming back after and saying, "No, no, no, the streets, people are running wild on the streets committing crimes. Our citizens are not safe anymore given bail reform. And so we need to retract bail reform. We need to go back on bail reform." And that's been what's been going on the last three years or so.
And the fundamental problem with what the police are saying, particularly the Police Chiefs Association, that the streets are no longer safe in New Hampshire, the crime rate in New Hampshire's been going down steadily ever since bail reform was in place, not because of bail reform, but there's no sign that bail reform has made the streets less safe. In fact, there's just no sign, no data that suggests that whatsoever. The crime rate in Manchester, the city where the mayor, and the police chief, and many of the representatives are complaining that things are going crazy in the city, it's no longer safe, crime rates in Manchester have been going down steadily also. So there's this conflict between the data and what the police chiefs and others claim they want.
A. J. Kierstead (Host):
It really comes down to, it seems like, anecdotes as opposed to statistics, which is something we always try and focus on, on the show is what's the actual data showing? Especially when we talk about criminal justice reform. It's so important to figure out what's actually happening or not happening. And this article you wrote for the Union Leader, I mean, is a prime example of that where it's an anecdote.
Professor Buzz Scherr:
Yep, perfect example. The mayor, representative Ross Berry, Republican out of Manchester, the police chief all said that Mr. Whittimore was killed in September of last year because of bail reform. "But for bail reform, he would be living today." That's what that group of people and many others were saying. And so I investigated the case. Their argument was this, Mr. Moore, the defendant in that case, was charged with an attempted first-degree assault in early July of last year. The attempted first-degree assault sounds like a very serious violent crime. What happened was he was a homeless per person living out of his car. Another group of homeless people surrounded him. They had problems with the way he had treated yet another homeless person, and he pulled out a knife and was swinging it around. And that's it.
Technically, if somebody had been hurt, it might have been a first-degree of assault. But nobody was hurt, so it was an attempted first-degree of assault, but not the most violent of crimes. So he's held in jail overnight. He has a hearing in front of a judge. He has a lawyer. And the prosecutor makes his argument, either to be held without bail or if the judge is going to hold him, is going to grant personal recognizance bail, PR bail, where he doesn't post any money to have some conditions on it. Defense makes their argument, says, "Here's what really happened in the case." And I get all this information from, I purchased the transcript of that hearing. So I actually, again, looked at the data, looked at the words, looked at the hearing.
And the judge at the hearing said, "I'm going to grant PR bail with conditions, because boy, this is a really triable case." Basically implying, not saying it out loud, but implying, "I don't want to hold this guy on a really triable case for six months or a year." So out he went. In early August, about a month later, he's arrested on a misdemeanor for failing to leave a McDonald's when a police officer told him to do that. He's arrested on a misdemeanor. He's not arraigned on that. He's released and his arraignment is scheduled for early September. Later in August, he's arrested for disorderly conduct and two resisting arrests. The resisting arrest, he struggled when they were trying to take him into custody for an arrest and nobody was hurt. And then he refused to put his feet in the police cruiser. That counted as a second resisting arrest.
So fast forward, he's held in jail. The next day, he's had an arraignment on both sets of misdemeanors, the early August misdemeanor, the McDonald's misdemeanor, and the resisting arrest misdemeanor in early September. He's in front of a judge in Nashua, and the Judge grants him PR bail. A few days later, Mr. Whittimore is stabbed and killed and he's charged with that killing. Now, what the police are saying is, "It's outrageous that the Bail Reform Act allowed him to be out on bail on a attempted first-degree assault. And then the judge kept him out even though he committed two more sets of crimes when he was out on bail." Sounds like an outrage, right? Put that way. The bail statute is letting him go free over and over again no matter what he is doing. Nobody's calling him out on that.
Well, it turns out that at that hearing in early September on the two sets of misdemeanors, the prosecutor never brought out that he was out on bail on attempted first-degree assault. Never gave the judge an opportunity to say, "Whoa! We got to put this guy in jail, because he's already out on attempted first-degree assault. Now, he's committing more crimes." Classic circumstance where a judge would likely hold him. So failure by the prosecutor, number one. Number two, the original prosecutor on the attempted first-degree assault, he had the opportunity, if he bothered to look, to notice the early August misdemeanor and file a motion to revoke his bail on the assault right after the early August McDonald's misdemeanor. Didn't do that.
He had the same attempt, the same opportunity in early September to revoke it on the second set of misdemeanors. Didn't do that. So what we're really seeing here is the statute would've allowed for him to be held if the prosecutors had brought it to the attention of the judges. But they didn't. So it's not a failure of the bail statute, as my article says. The problem here is not a failure of the bail statute. The problem here is a failure of the prosecutors. Bail statute, there's plenty available in the bail statute to make happen what everybody said should have happened. In fact, the changes that Ross Berry has presented and his current legislator said, "When somebody is arrested for a violent crime, they got to be held til they see a judge." Well, that's what happened on the attempted first-degree assault.
A. J. Kierstead (Host):
And that's usually what happens.
Professor Buzz Scherr:
That's what happened on the second set of misdemeanors. He was overnight before he got arraigned. So it's a lot of stunting and performance on bail to try and get the bail statute changed dramatically to the detriment of many people without paying attention to the facts. And the police chiefs and those in support of cutting back on bail reform have these horrible stories that they trot out, but the data's just not out there.
A. J. Kierstead (Host):
I mean, there's no way around it that all these stories are sad, or tragic or just horrific, whatever way you want to describe it. No one on either side of the political aisle is saying other way on that. And this just turns into a political football going back and forth with it. And meanwhile, the numbers, at least in New Hampshire, it's showing that it's doing its job. It's lowered the amount of people in jail. The jail, how many people are even in the Hillsborough County Jail at this point after these?
Professor Buzz Scherr:
Well, interestingly, in one of the studies, one of the data collection studies I did at the front end of this, when we were talking to the legislature, pre bail reform, I looked at how many people were being held in Hillsborough County Jail, fondly known as Valley Street, on bail of a thousand dollars or less. The judge sets bail a thousand dollars or less, he's not really setting it because the person's dangerous or because their failure to appear. He's just setting it because kind of that's the routine. How many people were being held in Valley Street before bail reform went into effect in the month of, I think it was September 1st or September 30th? And it was something like over 170 people.
A year after bail reform went into effect, eight people were being held on a thousand dollars or less bail. The only other people being held were being detained without bail, as per the new bail statute. So Hillsborough County is closed, uses a whole wing of the Valley Street Jail not holding people, but for other issues. Their budget went down one year.
A. J. Kierstead (Host):
I mean, what really seems like the red flag where something went wrong is what happened with the prosecutor's office in this situation. I mean, we know? We always talk about how maybe police are stretched too thin, teachers are stretched too thin, all these other aspects of how the government operates.
Professor Buzz Scherr:
Prosecutors.
A. J. Kierstead (Host):
Yeah, what about the prosecutors?
Professor Buzz Scherr:
They're stretched too thin also. I mean, that's one explanation for it. They have each of the attorneys in the office, like the Assistant Hillsborough County attorney who was on the Moore case, the person that we've been talking about, undoubtedly he has way too many cases. The Hillsborough County Attorney's Office is understaffed. So the charitable view is he never had an opportunity to look to see if anything had happened on this case. The less charitable version is he or she was lazy and didn't look, even though they had the time. Another version, and these are overlapping versions, but another version is they don't have a system set up so he would be automatically notified. They don't have the technology set up or the software set up so he'd be automatically notified that the person had been arrested for a misdemeanor while out on bail.
That's just a technology thing. I'm sure you could set that up. But maybe that's what didn't happen. Maybe the prosecutor in Nashua District Court, where that arraignment in early September happened, who didn't bring up that he was out on attempted first-degree murder, on bail, maybe that prosecutor didn't look before they went into the hearing. Maybe they looked, but the system wasn't working. Something's wrong with the way prosecutors are handling these cases. And so yeah, there are people who are out on bail who are being arrested for more crime, serious or otherwise. But the system, the bail statute, is there to be used to get them in jail. It's just not happening.
A. J. Kierstead (Host):
In this is getting into politics a little bit, but you dive into that. I mean, the big thing that conservative media does, at least when they attack these sorts of situations in order to undo bail reform, is they say, "Oh, it's an activist prosecutor that's just letting everyone go." And I haven't seen any evidence of that.
Professor Buzz Scherr:
Not in New Hampshire.
A. J. Kierstead (Host):
Not in New Hampshire, especially.
Professor Buzz Scherr:
There's none of that going on in New Hampshire, no. Nationally, bail reform plays out differently in different states, depending on where the bail statute started out historically and what the bail reform that occurred actually did. So it varies tremendously. And there's this huge fight nationally, state-by-state or big city-by-big city, of kind of competing narratives. Bail reform has really made a positive difference, crime rate hasn't gone up versus God, the murder rate is skyrocketed. And there's no national data that gives you the answer to bail reform, partly because bail reform is different in every state. We have 51 different criminal justice systems in the United States, the 50 states and the federal government. And so bail is different in every jurisdiction.
So the bail in New Hampshire is a lot closer to the way it is in the federal system, which has worked well for years. Bail is really not driving the crime. Bail reform, there's little evidence that bail reform is driving the crime rate. Really, it's a false narrative, but it's convenient narrative. And it's nothing easier as a politician than to say things that scare people, that make them feel not safe in their homes and on the streets. And that's always what you hear from people who are opposed to bail reform, or when bail reforms in place, claim that the streets are no longer safe. And at least in New Hampshire, I only can speak for New Hampshire, but I've been doing a decent amount of data collection over the years and making a solid effort, and I got some more data to tell you about, but it's just not what's happening with bail reform.
Crime rates are going down. Every kind of crime, it's going down. So one of the things that's been a problem is when, we've talked about this before, that the judicial system, the courts, don't have a data collection system. They just have a case management system. They don't have that data collection software. So to collect data about what's happening in cases, you need to get a case number or the name of a person. You need to go to the courts, call the court system up and request the case summary sheet for that case. Get it sent to you. Then you got to code it into a database to really start to develop information. Last summer, I put together a group of students and we started to collect that data. By the time I testified to this earlier this year at a hearing, we had looked at 508 cases.
The quick facts from those cases, of those 508 cases, there were only four of the case summary sheets that indicated a breach of bail, 0.79%. Of the 508 cases, catch this, of the 508 cases, this is misdemeanors and felonies in Manchester District Court and Hillsborough County Superior Court, which is the area of biggest contention about bail problems. Of the 508 cases, 187 of them resulted in either all the charges being dismissed or dumped by the prosecutor. That is almost 37% of all the cases where bail was originally set, all the charges were dismissed, over a third of the cases. So what does that mean? It means if you're holding people in jail on bail, as we expand these numbers, if this number holds true and we get a larger sample, a third of the people being held in jail are going to be, charges are going to be dropped in some fashion, or dismissed.
Almost all the 508 cases, when there was a prison or a jail sentence, it was suspended. That is, people being held are not going to be going to jail once they're convicted.
A. J. Kierstead (Host):
I mean, this may be jumping way ahead in the future, but I mean, when you're talking numbers like that, I mean, you have a constitutional right not to be held against your will. And with these numbers, I mean, this seems like it would go to the federal level with some lawsuits for states that don't adopt things like this.
Professor Buzz Scherr:
We'll see how it goes. Our data collection continues. We hope by the end of this semester, the 1st of May, to have looked at over 2,000 cases. That's our hope, to see if these numbers... Of the 334 cases out of Superior Court in Manchester, 240 involved drug-related charges. That is almost 72% of all the felonies in Superior Court in Manchester, we saw 334 of them, almost three-quarters of them were drug-related charges, rather than the people scared to go out, murders and assaults, and shootings, and bank robberies, and stuff like that. What people claim in their performance in front of the media as to what's going on and whether you're safe or not, does not appear to be actually the case.
A. J. Kierstead (Host):
Professor Buzz Scherr, Director of the International Criminal Law and Justice Program, thanks so much for joining me. Thanks for listening to Legal Impact presented by UNH Franklin Pierre School of Law. So if [inaudible 00:24:23] about the show, please be sure to subscribe and comment on your favorite podcast platform, including Apple Podcasts, Google Podcasts, and Spotify. Get the back episodes of the show and podcast links at law.unh.edu/podcast.
