On October 17, 2016, the New Hampshire Supreme Court rejected the recommendation of the Advisory Committee on Rules (ACR) to make various rule changes that would have, as a temporary pilot project, helped curb debtors’ prison practices in New Hampshire. The Court explicitly left the issue to the New Hampshire legislature.
These recommended amendments would have, among other things, appointed counsel when a defendant was threatened with jail for being unable to pay a fine. The ACR’s carefully-crafted recommendation that the Court rejected followed a one-and-one-half year process of data collection and analysis by the ACLU-NH and University of New Hampshire Law Professor Buzz Scherr, which culminated in a report published on September 23, 2015.
“We are deeply disappointed that the Court declined to adopt the proposal that had the approval of virtually all the stakeholders in the criminal justice system,” said Professor Buzz Scherr, who co-authored the ACLU-NH report. “The ACR’s proposal, by design, would have provided the legislature with real data upon which to fashion a full solution. We fear that this decision fails to provide the protections necessary to ensure that poor people in New Hampshire are not improperly jailed for being unable to pay a court fine.”
“The Court stated its belief that this matter should be considered by the legislature,” added Scherr. “The ACLU-NH looks forward to working with the legislature to address the serious concerns left unresolved by the Court’s new rules.”
The ACLU-NH also disagrees with the Court’s conclusion that defendants who are threatened with jail for non-payment of fines are not constitutionally-entitled to counsel. As the New Hampshire Supreme Court explained in Stapleford v. Perrin, 122 N.H. 1083, 1088 (1982), a “significant liberty interest exists which is worthy of due process protection … when some condition set by the court has not been met and incarceration is the proposed remedy.” There, the Court noted that one of the procedures that must be followed under this circumstance is “representation by counsel, to be appointed by the court if the Petitioner is indigent.” The Court’s October 17 decision significantly undermines this longstanding and important precedent.
Finally, the adopted rules also take a step backwards by, for example, explicitly allowing credit access to be considered by a judge in determining whether a defendant has an ability to pay. Just because a defendant has available credit on a credit card or has a car to put up for a title loan does not mean that he or she will have any ability to make payments on the debt.
More information on this work, including the ACLU-NH’s Debtors’ Prison Report, can be found here.