NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by e-mail at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court’s home
page is: http://www.courts.state.nh.us/supreme.

                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Cheshire
No. 2018-0637

                        THE STATE OF NEW HAMPSHIRE

                                         v.

                               CHRISTINA A. HILL

                           Argued: October 16, 2019
                       Opinion Issued: December 13, 2019

      Gordon J. MacDonald, attorney general (Lisa L. Wolford, senior assistant
attorney general, on the brief and orally), for the State.


      David M. Rothstein, deputy director public defender, of Concord, on the
brief and orally, for the defendant.

      HICKS, J. The defendant, Christina A. Hill, appeals an order of the
Superior Court (Ruoff, J.) releasing her before trial on the condition that she
pay $10,000 cash bail, among other conditions. Although, since filing her
appeal, the defendant has resolved the charges against her by plea, the parties
agree that her appeal is not moot “because it presents legal issues that are of
pressing public interest and are capable of repetition yet evading review.”
Olson v. Town of Grafton, 168 N.H. 563, 566 (2016) (quotation omitted). They
have asked that we decide “the primary issue raised in her bail appeal —
whether under RSA 597:2, a trial court may set bail at an amount the
defendant cannot meet, on the sole basis that the defendant is a flight risk.”
We agree that this issue is not moot, and now hold that RSA 597:2 (Supp.
2018) (amended 2019) permits a trial court to set unaffordable bail “on the sole
basis that the defendant is a flight risk.”

       The defendant was charged with, and pleaded not guilty to, three drug-
related charges: possession of heroin, possession of crack cocaine, and sale of
crack cocaine. At her arraignment, the State requested that the court
preventively detain the defendant because her release posed a danger to the
community. According to the State, the defendant engaged in the charged
conduct while released on her own recognizance on another drug possession
charge. The State contended that, by possessing and selling controlled drugs
and engaging in other conduct, the defendant violated the terms of her release.
In addition, the State informed the court that the defendant engaged in the
conduct while under the terms of a suspended sentence. According to the
State, in August 2018, the defendant had been convicted of felony possession
of a controlled drug for which she was sentenced to one-to-two years in prison,
suspended for three years.

       The State described, in detail, the defendant’s “significant criminal
record,” dating from 2007, which included prior convictions for felony theft,
forgery, endangering the welfare of a child, receipt of stolen property, and
felony possession of a controlled drug. The State also observed that the
defendant had shown through prior conduct that “she’s not likely to abide by
[the court’s] bail conditions,” noting that she had been convicted of violating
the terms of her probation on multiple occasions over a ten-year period (from
2008 to 2018). In 2011, the defendant was convicted of “bail jumping.” In
addition, the State informed the court that the defendant had “two failures to
appear on her record, one in October of 2007 . . . and . . . another in December
of 2010.”

      Defense counsel requested that the defendant be released with
nonmonetary conditions because there was not “clear and convincing evidence”
that such conditions would fail to assure her appearance at trial. Defense
counsel suggested that such conditions include that the defendant enroll in an
intensive outpatient program for drug addiction and have “daily check-ins with
the Court.”

       The trial court originally set cash bail at $25,000, because it was “not
satisfied that any . . . conditions that [it] could set” would assure the
defendant’s compliance with the law. The court explained that “driving [its]
decision” were the facts that the defendant committed the charged offenses
while “out on bail” and under a deferred sentence.

      The court specifically determined that the defendant’s release would not
be dangerous because she had not been charged with “selling large volumes of
drugs,” selling drugs in a school zone, or selling while “armed and dangerous.”


                                        2
Rather, the court stated that its bail decision was based upon its determination
that the defendant posed “just a risk of flight.”

      Defense counsel objected, arguing that under RSA 597:2 as amended in
2018, “the Court is required to set an amount of cash bail that will not result
in detention simply because the defendant is not able to post the amount of
money.” Defense counsel represented that the defendant lacked the ability to
post $25,000 cash bail, but that her uncle could post $300. Thus, defense
counsel requested that the court set cash bail at $300.

       The trial court disagreed, ruling that RSA 597:2 “allows [the court] to set
an amount [of cash bail] regardless of [the defendant’s] ability to post it if [the
court] make[s] sufficient findings by [a] preponderance of the evidence that just
a bail that she can . . . post is not sufficient.” The court reiterated, however,
that there was not clear and convincing evidence that the defendant’s release
would be dangerous.

      Defense counsel argued that an amount less than $25,000 cash bail
would suffice to assure the defendant’s appearance, explaining that the
defendant “is not a person of great means” and that $25,000 cash “is not just a
substantial amount of money to her, it’s a fortune.” The trial court reduced the
cash bail to $10,000, but stated that the reduction likely would not “make that
much of a difference” because that amount is not “something that [the
defendant] can post.” This appeal followed.

       On appeal, the defendant contends that RSA 597:2 precludes the trial
court from setting cash bail in an amount that the court knows will result in a
defendant’s detention unless the court determines by clear and convincing
evidence that the defendant’s release will endanger the safety of the defendant
or the public. The State counters that, under RSA 597:2, a trial court may set
unaffordable cash bail that results in detention when the preponderance of
evidence establishes that the defendant poses a flight risk. For the reasons
that follow, we agree with the State.

       Resolving this issue requires that we engage in statutory interpretation.
When construing statutes, we first look to the plain and ordinary meaning of
the words used. Petition of Second Chance Bail Bonds, 171 N.H. 807, 811
(2019). We discern legislative intent from the statute as written and will not
consider what the legislature might have said or add language that the
legislature did not see fit to include. Id. We construe all parts of a statute
together to effectuate its overall purpose and avoid an absurd or unjust result.
Id. Moreover, we do not consider words and phrases in isolation, but rather
within the context of the statute as a whole. Id. This enables us to better
discern the legislature’s intent and to interpret statutory language in light of
the policy or purpose sought to be advanced by the statutory scheme. Id. If a
statute’s language is plain and unambiguous, then we need not look beyond it


                                         3
for further indication of legislative intent. State v. Rosario, 148 N.H. 488, 489
(2002). By contrast, if the statutory language is ambiguous or subject to more
than one reasonable interpretation, we will review legislative history to aid in
our analysis. Id.

      RSA 597:2 provides, in relevant part:

          III. (a) The court shall order the pre-arraignment or pretrial
      release of the person on his or her personal recognizance, or upon
      execution of an unsecured appearance bond in an amount
      specified by the court, or cash or corporate surety bail, subject to
      the condition that the person not commit a crime during the period
      of his or her release, and subject to such further condition or
      combination of conditions that the court may require unless the
      court determines by a preponderance of the evidence that such
      release will not reasonably assure the appearance of the person as
      required. A person who the court determines to be a danger to the
      safety of that person or the public shall be governed by the
      provisions of paragraph IV, except that such dangerousness
      determination shall not be based solely on evidence of drug or
      alcohol addiction or homelessness.

            (b) In determining the amount of the unsecured appearance
      bond or cash or corporate surety bail under subparagraph II(a), if
      any, the court:

                (1) Shall not impose a financial condition that will result
      in the pretrial detention of a person solely as a result of that
      financial condition.

               ....

             (c) For purposes of the court’s determination under this
      paragraph, evidence of homelessness or a lack of a mailing address
      by itself shall not constitute prima facie evidence of a lack of
      reasonable assurance that a person will not appear.

            (d) If, as a result of the court’s decision, a person is detained,
      the court shall issue on the record findings of fact that document
      the basis for its decision.

             (e) If the court or justice determines by a preponderance of
      the evidence that the release described in this paragraph will not
      reasonably assure the appearance of the person, the court shall
      issue an order that includes the following conditions, subject to the
      limitation in subparagraph (b)(1):


                                         4
                  (1) The condition that the person not commit a crime
         during the period of release; and

                   (2) Such further condition or combination of conditions
         that the court determines will reasonably assure the appearance of
         the person as required . . . [; and]

                  (3) Satisfy any other condition that is reasonably
         necessary to assure the appearance of the person as required and
         to assure the safety of the person or the public.

                ....

             IV. (a) If a person is charged with any criminal offense, an
         offense listed in RSA 173-B:1, I or a violation of a protective order
         under RSA 458:16, III, or after arraignment, with a violation of a
         protective order issued under RSA 173-B, the court may order
         preventive detention without bail, or, in the alternative, may order
         restrictive conditions including but not limited to electronic
         monitoring and supervision, only if the court determines by clear
         and convincing evidence that release will endanger the safety of
         that person or the public. The court may consider the following
         conduct as evidence of posing a danger, including, but not limited
         to:

             (1) Threats of suicide.

             (2) Acute depression.

             (3) History of violating protective orders.

             (4) Possessing or attempting to possess a deadly weapon in
         violation of an order.

             (5) Death threats or threats of possessiveness toward another.

             (6) Stalking, as defined in RSA 633:3-a.

             (7) Cruelty or violence directed toward pets.

             ....

(Emphases added.)1
1
    RSA 597:2 was amended in 2019. See Laws 2019, ch. 143. As amended, RSA 597:2, III(a) now


                                               5
       The defendant argues that two provisions in RSA 597:2 preclude the trial
court from setting unaffordable bail: (1) RSA 597:2, III(b)(1), which provides that
the court “shall not impose a financial condition that will result in the pretrial
detention of a person solely as a result of that financial condition”; and (2) RSA
597:2, IV(a), which allows a trial court to order preventive detention without bail
or to order restrictive conditions, such as electronic monitoring and supervision,
“only if the court determines by clear and convincing evidence that release will
endanger the safety of that person or the public.” We disagree; neither
provision precludes a trial court from setting unaffordable bail based upon the
court’s determination that the arrestee poses a flight risk.

       Pursuant to its plain language, RSA 597:2, III(b)(1) precludes preventive
detention of an arrestee “solely as a result” of the “financial condition” imposed
by the court. (Emphasis added.) RSA 597:2, III(b)(1) is worded similarly to a
provision in the federal bail statute, which precludes a federal trial court from
“impos[ing] a financial condition that results in the pretrial detention of the
[arrestee].” 18 U.S.C. § 3142(c)(2) (2012). It may appear that when a court
permits a defendant to be released on bail, but the defendant is, nonetheless,
detained because she is unable to pay the bail, the detention necessarily
violates RSA 597:2, III(b)(1). We agree, however, with federal courts interpreting
the analogous federal provision that such is not the case. United

provides that “evidence of substance misuse or homelessness may be considered by the court,”
when determining dangerousness, “but such evidence shall not be the sole basis of a
dangerousness determination.” Laws 2019, 143:1. Similarly, as amended in 2019, RSA 597:2,
IV(a) now provides that, when assessing whether release will endanger the safety of the person or
public, the court may consider “all relevant factors.” Laws 2019, 143:3.

       As amended, RSA 597:2, III includes a new subparagraph (g), which provides:

         If the court determines by a preponderance of the evidence that a person has failed to
       appear on any previous matter charged as a felony, class A misdemeanor, or driving or
       operating while impaired, or a reasonably equivalent offense in an out-of-state jurisdiction,
       3 or more times within the past 5 years, there shall be a rebuttable presumption that
       release will not reasonably assure the appearance of the person as required.

Laws 2019, 143:2. In addition, as amended, RSA 597:2, IV now includes new subparagraphs (b)
and (c), which state that “[e]vidence in support of preventive detention shall be made by offer of
proof at the initial appearance before the court,” but that a defendant “may request a subsequent
bail hearing where live testimony is presented to the court,” and that there is a “rebuttable
presumption that an alleged victim of the crime shall not be required to testify at the bail hearing.”
Laws 2019, 143:3.

       The 2019 amendments also corrected a typographical error in RSA 597:2, III(b). Laws
2019, 143:1. Previously, that paragraph had referenced “the amount of the unsecured
appearance bond or cash or corporate surety bail under subparagraph II(a).” RSA 597:2, III(b)
(emphasis added). As amended, the paragraph now refers to “the amount of the unsecured
appearance bond or cash or corporate surety bail under subparagraph III(a).” Laws 2019, 143:1
(emphasis added).


                                                  6
States v. Fidler, 419 F.3d 1026, 1028 (9th Cir. 2005) (per curiam) (construing
federal bail statute and citing cases).

       As the Ninth Circuit Court of Appeals has reasoned, and as the First,
Fifth, Seventh, and Eleventh Circuit Courts of Appeals have similarly decided,
“the de facto detention of a defendant under these circumstances” does not
violate the federal bail statute “if the record shows that the detention is not
based solely on the defendant’s inability to meet the financial condition, but
rather on the [trial] court’s determination that the amount of the bond is
necessary to reasonably assure the defendant’s attendance at trial.” Id.; see
United States v. Jessup, 757 F.2d 378, 388-89 (1st Cir. 1985), abrogated on
other grounds by United States v. O’Brien, 895 F.2d 810 (1st Cir. 1990); United
States v. McConnell, 842 F.2d 105, 108-10 (5th Cir. 1988); United States v.
Szott, 768 F.2d 159, 160 (7th Cir. 1985) (per curiam); United States v. Wong–
Alvarez, 779 F.2d 583, 584-85 (11th Cir. 1985) (per curiam). Under those
circumstances, the defendant is detained “not because he cannot raise the
money, but because without the money, the risk of flight . . . is too great.”
Fidler, 419 F.3d at 1028 (quotation omitted). Thus, in Fidler, for instance, the
Ninth Circuit upheld the trial court’s denial of the defendant’s motion to modify
his bail order, ruling that the court did not violate the federal statute by
granting him pretrial release upon posting a $300,000 bond, even though the
bail order resulted in his detention, because his detention was not based solely
upon his inability to meet the financial condition. Id. at 1027-29. Rather, it
was also based, in part, upon the determination that the amount of the bond
was necessary to assure his appearance at trial. Id. at 1029.2

       The evident purpose of RSA 597:2, III(b)(1), read in the context of the
entire statute, is to preclude trial courts from setting unaffordable bail when a
person is neither a flight risk nor a danger to the community. See id. at 1028.
When unaffordable bail is set under those circumstances, the person is
detained “solely” because of the financial condition imposed. By contrast, when
unaffordable bail is set because a person poses a flight risk and the bail order
results in the person’s detention, that person is not detained solely because of
his or her financial condition, but also because he or she poses a flight risk.
Accordingly, we conclude that RSA 597:2, III(b)(1) does not preclude a trial court
from setting unaffordable bail when it determines that a person poses a flight
risk, but is not dangerous.

       Nor are we persuaded that RSA 597:2, IV(a) precludes a trial court from
setting unaffordable bail based upon the court’s determination that a person
presents a flight risk. RSA 597:2, IV(a) governs when a trial court may order
preventive detention. Under its plain meaning, RSA 597:2, IV(a) does not allow
a trial court to order preventive detention unless the court “determines by clear

2We note that the federal bail statute expressly allows preventive detention for defendants who
pose a flight risk. See 18 U.S.C. § 3142(e)(1) (2012).


                                                7
and convincing evidence that release will endanger the safety of that person or
the public.” RSA 597:2, IV(a). However, RSA 597:2, IV(a) does not govern de
facto detention, which occurs when a trial court sets unaffordable bail that
results in detention. See Fidler, 419 F.3d at 1028. Rather, bail orders are
governed by RSA 597:2, III.

       Contrary to the defendant’s assertions, trial courts have the implied
statutory authority to order unaffordable bail pursuant to RSA 597:2, III. The
statute is structured such that orders involving bail are governed by RSA
597:2, III, and orders involving preventive detention are governed by RSA
597:2, IV. RSA 597:2, III(d) expressly states that “[i]f, as a result of the court’s
decision, a person is detained, the court shall issue on the record findings of
fact that document the basis for its decision.” The plain language of RSA
597:2, III(d) implies that some bail orders will result in detention.

       The defendant argues that “despite the placement of Paragraph (d) in
Section III” of RSA 597:2, “Paragraph (d) must modify Paragraph IV” because
“Paragraph IV contains no requirement that the court make a record to support
its detention decision.” The defendant posits that the legislature could not
have “authorized detention under Paragraph IV but not required the court to
make findings in support of its decision.”

       The defendant’s argument requires that we add language to RSA 597:2
that the legislature did not see fit to include, which we may not do. Petition of
Second Chance Bail Bonds, 171 N.H. at 811. Had the legislature intended
subparagraph III(d) to apply to paragraph IV, it would have made it so.
Moreover, although we need not decide the issue in this case, we observe that
the Due Process Clauses of the New Hampshire and Federal Constitutions may
require a trial court to make specific findings of fact before directly ordering the
pretrial detention of an arrestee, regardless of whether RSA 597:2 requires
those findings. See United States v. Salerno, 481 U.S. 739, 751-52 (1987)
(holding that the “extensive safeguards” required by the federal bail statute,
which include the requirement that a decision to detain an arrestee pending
trial be supported by written findings of fact and a statement of reasons,
“suffice to repel a facial challenge” to the statute under the Due Process Clause
of the Fifth Amendment to the Federal Constitution).

      RSA 597:2, III(b)(1) similarly implies that detention may occur as the
result of a bail order. It provides that, when imposing a financial condition,
such as bail, detention may not result “solely” as a result of that financial
condition. RSA 597:2, III(a) also implies authority to set unaffordable bail. It
requires the court to order an arrestee to be released

      on his or her personal recognizance, or upon execution of an
      unsecured appearance bond in an amount specified by the court,
      or cash or corporate surety bail, subject to the condition that the


                                          8
      person not commit a crime during the period of his or her release,
      and subject to such further condition or combination of conditions
      that the court may require unless the court determines by a
      preponderance of the evidence that such release will not
      reasonably assure the appearance of the person as required.

RSA 597:2, III(a) (emphasis added). RSA 597:2, III(a) does not expressly state
what the court may do if it determines, by a preponderance of the evidence,
that a person’s release, even with conditions, will not reasonably assure his or
her appearance as required, but its wording implies that, under those
circumstances, the court has the authority to set unaffordable bail that results
in pretrial detention.

      The defendant argues that, to the contrary, when a court determines that
a person’s release will not reasonably assure his or her appearance, its only
option is to order the person released with the conditions set forth in RSA
597:2, III(e). The defendant correctly notes that “[m]issing from the list of
options in RSA 597:2, III(e) is detention,” and that subparagraph III(e) “provides
that the court’s authority to issue bail orders is limited by RSA 597:2, III(b)(1),”
which, as previously discussed, precludes the court from imposing a financial
condition that will result in the person’s pretrial detention based solely on that
financial condition.

       The defendant’s interpretation, however, does not square with the plain
meaning of the phrase “unless the court determines by a preponderance of the
evidence that such release will not reasonably assure the appearance of the
person as required.” RSA 597:2, III(a) (emphases added); see RSA 597:2, III(e)
(allowing the court to issue an order with certain conditions “[i]f the court . . .
determines by a preponderance of the evidence that the [person’s] release”
without such conditions “will not reasonably assure the appearance of the
person”). RSA 597:2, III(a) and (e) set forth the conditions that a court may
impose to reasonably assure the appearance of the person as required, be they
monetary (“cash or corporate surety bail”) or nonmonetary (“that the person not
commit a crime” while on release). However, both RSA 597:2, III(a) and (e)
contemplate that, for some arrestees, release on conditions “will not reasonably
assure” the person’s appearance. Both RSA 597:2, III(a) and (e) imply that in
such cases, the court may set unaffordable bail that results in detention,
provided that in so doing, the person is detained not solely because the bail is
unaffordable, but also because the person poses a flight risk.

      The defendant suggests that we examine the legislative history of the
2018 amendments to RSA 597:2. We decline to do so because we interpret the
statute according to its plain meaning. See Rosario, 148 N.H. at 489.

       For all of the above reasons, therefore, we hold that RSA 597:2 allows a
trial court to set unaffordable bail that results in detention based solely upon


                                         9
the court’s determination that an arrestee poses a flight risk. Of course, if the
legislature disagrees with our statutory interpretation, it is free to amend the
statute, as it sees fit, within constitutional limitations. See State v. Proctor,
171 N.H. 800, 807 (2019).

       We wish to make clear that, in this opinion, we have decided only the
narrow statutory question the parties have posed and briefed. Thus, we
express no opinion as to any issue the parties have not briefed, such as
whether the evidence before the trial court supported its factual findings in this
case, whether the bail order otherwise complied with RSA 597:2, whether the
bail hearing complied with RSA 597:2, or whether either the bail order or
hearing complied with the State or Federal Constitutions. See, e.g., Opinion of
the Justices, 117 N.H. 382, 385 (1977) (opining that pursuant to Part I, Article
33 of the New Hampshire Constitution and the Eighth Amendment of the
Federal Constitution, “[t]he purpose of the imposition of bail is to assure the
defendant’s appearance in court, and therefore the amount of bail may be set
no higher than that figure reasonably required to accomplish this result”);
Stack v. Boyle, 342 U.S. 1, 4-5 (1951) (holding that bail set at an amount more
than is reasonably calculated to assure that the arrestee will stand trial is
excessive under the Eighth Amendment); Brangan v. Commonwealth, 80
N.E.3d 949, 963-67 (Mass. 2017) (setting forth due process standards that
apply when unaffordable bail results in detention).

                                                  Affirmed.

      BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.




                                       10
