Thе defendant, Corey Furgal, appeals an order of the Superior Court (Groff, J.) finding RSA 597:1-c (Supp. 2009) constitutional on its face and denying the defendant’s request for bail. We affirm.
The following facts are relevant to the disposition of this case. In the early morning hours of November 1,2009, Christopher Vydfol was stabbed to death in Merrimack. Several witnesses identified the defendant as the assailant, and the grand jury subsequently indicted him on alternative counts of second degree murder. The State requested that he be held without bail whilе awaiting trial in accordance with RSA 597:1-c.
The defendant argued that the statute denied him due process because it bars the court from considering any facts other than those related to the strength of the State’s evidence of guilt and that, alternatively, if the statute is constitutional, the State must demonstrate his guilt beyond a reasonable doubt to deny bail pending trial. The trial court disagreed, ruling that the statute “narrowly focuses on a particularly acute problem in which the Government interests arе overwhelming,” and that flight risk and dangerousness are inherently considered in the “proof is evident” analysis. The trial court also ruled that once the State sustained its burden under the statute, the burden would shift to the defendant to rebut the State’s case, and that the court could then consider the defendant’s risk of flight or dangerousness before holding him without bail. Finally,
In New Hampshire, the general rule regarding pretrial release is that “all persons arrested for an offense shall be eligible to be released pending judicial proceedings.” RSA 597:1 (2001). Except for certain categories of arrestees, the release of a defendant pending trial is governed by RSA 597:2,1(a) and (b) (Supp. 2009).
Under RSA 597:2,1(a) the court must release thе defendant on personal recognizance or upon execution of an unsecured appearance bond with additional non-monetary conditions including that the defendant not commit a crime during the period of his release and “such further condition or combination of conditions that the court may require.” RSA 597:2, II (Supp. 2009) (provisions governing release under RSA 597:2,1(a)). To deny release under RSA 597:2,1(a), the court must determine that “such release will not reasonably assure the appearance of the person as required or will endanger the safety of the person or of any other person or the community.” RSA 597:2, II.
Only if the court makes that determination can it consider the conditions, including monetary conditions, authorized by RSA 597:2, 1(b) and the provisions governing such release in RSA 597:2, III (Supp. 2009). The latter section authorizes the court to consider monetary conditions including “bail . . . with sufficient sureties or by deposit of moneys equal to the amount of bail.” RSA 597:2,111(b)(2).
RSA 597:l-c, which is the subject of this appeal, is an exception to the general rule that all persons are eligible to be released pending trial. It provides that if a person has been charged with a crime punishable by life in prison and the State can show that “the proof is evident or the presumption great” that the defendant will be convicted, the defendant must be held without bail pending trial. RSA 597:1-c. Unlike bail provisions in some states that give the court discretion in denying bail, see, e.g., MlCH. CONST, art. I, § 15 (“bail may be denied... when the proof is evident or the presumption great”), RSA 597:1-c lеaves the court with no discretion where the proof is evident or the presumption great. In such cases, a person “shall not be allowed bail.” (Emphasis added.)
On appeal, the defendant argues that RSA 597:1-c violates his due process rights because it limits the court’s consideration of individual factors such as flight risk or dangerousness. He further contends that the trial court erred in finding that the statute shifts the burden to the defendant after the State meets its initial burden. Finally, he argues that the State must prove beyond a reasonable doubt that the defendаnt will be convicted of an offense that carries a potential life sentence, rather than by clear and convincing evidence.
The defendant has mounted a facial challenge to RSA 597:l-c. “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”
United States v. Salerno,
“We review a trial court’s interpretation of a statute
RSA 597:l-c provides that “[a]ny person arrested for an offense punishable by up to life in prison, where thе proof is evident or the
presumption great, shall not be allowed bail.” Since in this state defendants are ordinarily entitled to bail prior to trial, it is the State that must bear the burden under the statute.
See Martinez v. Superior Court, In & For County of Pima,
The plain language of the statute thus requires the State to show first that the person is charged with an offense punishable by up to life in prison and then show that the proof is evident or the presumption great. Nothing in the language of the statute permits the court to consider factors such as flight risk or dangerousness, and we will not “add language that the legislature did not see fit to include.”
Lamy,
Additionally, contrary to the trial court’s order, the plain language of the statute does not shift the burden of proof to the defendant once the State establishes that the proof is evident оr the presumption great. The plain language of the statute provides that once the State meets its burden, the defendant “shall not be allowed bail.” RSA 597:l-c.
We thus conclude that the plain language of RSA 597:l-c does not permit the trial court to consider factors such as flight risk or dangerousness. Accordingly, we turn to whether, as construed, the statute violates due process. We begin our analysis with a brief review of bail in the Anglo-American legal system.
Bail emerged in medieval England as an effort to “implеment the promise of the famous 39th chapter of Magna Carta that ‘no freeman shall be arrested, or detained in prison unless by the law of the land.’ ” Foote,
The Coming Constitutional Crisis In Bail: I,
113 U. Pa. L. REV. 959,
965-66
(1965) (ellipses omitted). Subsequently,
While the development of bail procedures in England tended to favor the granting of bail, an exception was made for those accused of crimes that carried a severe sentence. Blackstone noted that once arrested, a prisoner must:
either be committed to prison, or give bail: that is, put in securities for his appearance, to answer the charge agаinst him. This commitment, therefore, being only for safe custody, wherever bail will answer the same intention, it ought to be taken; as in most of the inferior crimes; but in felonies, and other offences of a capital nature, no bail can be a security equivalent to the actual custody of the person. For what is there that a man may not be induced to forfeit to save his own life? and what satisfaction or indemnity is it to the public, to seize the effects of them who have bailed a murderer, if the murderer himself be suffered to escape with impunity?
[W]here the imprisonment is only for safe custody before the conviction, and not for punishment afterwards, in such cases bail is ousted or taken away, wherever the offence is of a very enormous nature: for then the public is entitled to demand nothing less than the highest security that can be given, viz., the body of the accused; in order to insure that justice shall be done upon him, if guilty. Such persons, therefore, . . . have no other sureties but the four walls of the prison.
W. Blackstone, Commentaries on the Laws of England 1001-02 (George Chase 4th ed., The Banks Law Publishing Co. 1914) (1765-69).
The influence of the English bail jurisprudence first аppeared in the American colonies as part of the Massachusetts Body of Liberties of 1641, which would serve as the model for the development of the bail system in the colonies. Liberty 18 provided that:
No mans person shall be restrained or imprisoned by any Authority whatsoever, before the law hath sentenced him thereto, If he can put in sufficient securitie, bayle or mainprise, for his appearance, and good behaviour in the meane time, unlesse it be in Crimes Capital, and Contemрts in open Court, and in such cases where some expresse act of Court doth allow it.
W. WlTMORE, A BlBLIOGRAHICAL SKETCH OF THE LAWS OF THE MASSACHUSETTS Colony From 1630 to 1686 37 (1890).
The “Crimes Capital” exception eventually evolved into a statute that first appeared in the Frame of Government of
It is against this historical backdrop that we turn to the defendant’s argument that RSA 597:l-c violates both the New Hampshire and United States Constitutions. We first address the defendant’s due proсess arguments under the State Constitution, citing federal opinions for guidance only.
See State v. Ball,
“[T]he Due Process Clause protects individuals against two types of government action. So-called ‘substantive due process’ prevents the government from engaging in conduct that shocks the conscience, or interferes with rights implicit in the concept of ordered liberty.”
Salerno,
The defendant first argues that RSA 597:1-c violates substantive due process rights because it does not permit the trial court to consider a defendant’s risk of flight or dangerousness when deciding whether to deny bail. The defendant relies upon Salerno, in which the defendants brought a facial challenge to the Bail Reform Act of 1984, arguing that it violated both the Due Process Clause and the Excessive Bail Clаuse of the Federal Constitution. Id. at 746. The statute required the Government to show by clear and convincing evidence that the defendant posed a substantial risk to the community if he were released, and, based upon such a finding, allowed the court to deny bail. Id. at 742. The Court held that the Government’s interest in community safety, combined with the procedural protections provided in the statute, outweighed the defendant’s liberty interest, and accordingly upheld the statute against the defendant’s facial chаllenge. Id. at 748, 751-52.
The defendant asserts that
Salerno
stands for the proposition that in order to pass constitutional muster, a statute that permits a defendant to be held without bail is constitutional only if it expressly requires the court to consider whether the individual defendant poses a danger to the community. The defendant conflates sufficient conditions with necessary ones. We do not read
Salerno
to hold that all statutory bail schemes must include an individualized inquiry into a defendant’s dangerousness
The defendant also contends that, to satisfy due process, a trial court must consider the defendant’s individual flight risk before denying bail. Historically, the purpose of bail was to ensure the defendant’s presence at trial and to ensure that he would submit to punishment if convicted.
See Ex parte Milburn,
While a specific inquiry into the individual factors in each case is not required by the constitution, we agree with the trial court that both risk of flight and dangerousness are inherent in the “proof is evident” analysis. Historically, persоns charged with crimes carrying a severe sentence were denied bail because the flight risk associated with such punishment allowed for no set of conditions that could assure the defendant’s presence at trial.
See
BLACKSTONE,
supra
at 1001-02. The denial of bail in this state is limited to the most serious offenses. The legislature has made a reasoned determination that when “the proof is evident or the presumption great,” the risk to the community becomes significantly compelling, thus justifying the denial of bail.
See Salerno,
Our conclusion that RSA 597:l-e passes constitutional muster is buttressed by the fact that, as noted in
Salerno,
detention without bail is strictly limited in duration. In
Salerno,
the Court made note that pretrial detention was limited by “the stringent time limitations of the Speedy Trial Act.”
Id.
at 747. In this state, pretrial detention is limited by the superior court’s speedy trial policy.
See
Super. Ct. R. Appendix (Superior Court Speedy Trial Policy) (“Where the defendant is incarcеrated, every case pending without disposition after 4 months from date of entry or indictment shall be scheduled forthwith for a show cause hearing as
The defendant next contends that the trial court erred in determining the standard of proof under RSA 597:l-с. The trial court ruled that the State must show that the proof is evident or the presumption great by clear and convincing evidence. The defendant argues that the statute requires that the State’s burden must be “beyond a reasonable doubt,” and, alternatively, that if the statute does not permit a flight or dangerousness inquiry, the Salerno decision demands that the State be held to the reasonable doubt standard. The State argues that the burden imposed by the statute has an independent meaning that roughly equates with “clear proof.”
We begin by determining the standard of proof imposed by the statute. In deciding the burden of proof required by the “proof is evident” standard, courts in other states have reached a variety of conclusions ranging from “a fair likelihood of conviction” to a standard that is more stringent than beyond a reasonable doubt. See Simpson, 85 P.3d at 488. The standards can be divided into three categories: (1) those requiring a variation of probable cause or fair likelihood that the accused committed the сrime; (2) those requiring a variation of clear and convincing evidence that the accused committed the crime; and (3) those requiring a variation of evidence beyond a reasonable doubt that the accused committed the crime. See id. We adopt the second standard of proof and require that the State show that the proof is evident or the presumption great by clear and convincing evidence.
We reject the cases requiring mere probable cause because “if [the statute] were to be read in such a manner, the guarantee would add nothing to the accused’s rights, since a suspect may not be held without a showing of probable cause in any instance.”
Id.
at 489 (quotation omitted). We likewise reject the cases that require proof beyond a reasonable doubt. “The greatest burden of proof should be put on the State to convict the accused.”
Id.
at 490. “That degree of proof is reserved for trial and is not what the writers of our [statute] had in mind in prоviding for bail.”
Id.
at 489 (quotation omitted). Indeed, the bail statute replaced the common law rule from
McNab,
which allowed for the denial of bail in capital cases only if there were no “circumstances to induce the court to suppose [the accused] may be innocent.”
McNab,
As the Arizona Court of Appeals in
Simpson
noted, “[t]he history of the phrase alone suggests that it is unique and that it establishes its own standard since there is no comparison for recourse.”
Id.
at 487. After examining other state cases and the history of the phrase, the court concluded: “The State’s burden is met if all of the evidence, fully сonsidered by the
Alternatively, the defendant argues that if the сourt is not permitted to make a flight or dangerousness inquiry, the decision in Salerno supports the conclusion that RSA 597:l-e violates due process. The defendant contends that the only way to remedy the defective statute would be to hold the State to the reasonable doubt standard. As discussed above, we do not read Salerno to hold that all statutory bail schemes must include an individualized inquiry into a defendant’s dangerousness or flight risk in order to comport with due process. Because we reject the defendant’s contention that RSA 597:1-c is constitutionally defective, we see no reason to impose a greater burden than is required by the statute.
Finally, we briefly address the issue of the procedural protections required by the statute. The defendant states that courts in other jurisdictions have reasoned that all or most of the federal Bail Reform Act’s procedural protections cited in
Salerno
are minimum requirements of
procedural due process.
See Simpson,
Because the Federal Constitution does not provide any greater protection than does the State Constitution with regard to the defendant’s due process claims, we reach the same result under the Federal Constitution.
See In re Shelby R.,
Affirmed.