Bar News - January 5, 2007
New Sexual Predator Law Raises More Questions Than There Are Answers
By: Anita S. Becker
Editor’s Note: This is the first in a series of articles on the NH Sexual Predators Act. The first is an overview of the new law and concerns raised by the state’s legal, law enforcement, and social services communities. The act is briefly outlined in a sidebar. The other articles will take a more in-depth look at how the law is being implemented, possible challenges to the law, and the legal and civil rights aspects related to the law.
The New Hampshire Sexual Predators Act, which took effect this week, will dramatically change the way criminal law will be practiced and adjudicated in the state. It imposes stringent new sentencing guidelines; registration requirements; longer supervision; and civil commitment for sexually violent predators (see overview of the law on page 25).
A recent panel discussion as part of the NHBA CLE seminar, “Understanding NH’s New Sexual Predators Act,” led to some heated exchanges and numerous questions from the audience—many of which were answered with variations on the phrase “time will tell….” The day-long program was organized by the NHBA’s Criminal Justice Section for prosecuting or criminal defense attorneys who handle cases involving sex offenders, and attracted a full house of about 145 attendees. Many more wanted to register but were turned away because capacity for the conference room had been reached. (For information on the Jan. 24, 2007 video replay, go to “NHBA CLE Seminars.”)
Many of the questions from attorneys, police officials, health and human service providers and other interested parties that attended the event revolved around three general areas: cost and resource allocation to implement the various facets of the new law (no funding was appropriated by the Legislature to sustain the act); details of the procedural aspects of the law that will affect the way county attorneys, defense attorneys, judges, law enforcement, corrections officials, health and human services officials, and psychiatric professionals do business; and civil liberties issues connected with the privacy and due-process rights of the defendants. Even the panelists themselves had unanswered questions about the new law.
One of the panelists, Litigation Director Richard C. Guerriero, of NH Public Defender (and co-chair of the NHBA Criminal Justice Section), said that a “question for defense lawyers is how do we advise our clients when there are so many unknowns right now?”
Panelist Michael J. Iacopino, president of the NH Association of Criminal Defense Lawyers and defense attorney of Brennan, Caron, Lenehan & Iacopino in Manchester, said that the law poses some ethical questions for county attorneys, who he believes might feel public pressure to bring cases forward that might not be sustainable in court. “Are prosecutors going to use this [law] with a weak case?” He was also concerned that, county by county, prosecutors might interpret the law differently. “There is potential disparity.”
“Everyone’s all excited that now the landscape has changed,” said another panelist, First Assistant Hillsborough County Attorney Roger “Rusty” Chadwick. “I don’t know if that is exactly the case. I think less has changed than we think.” He addressed Iacopino’s concerns by saying that prosecutors still have the ability to determine whether or not to bring a case forward based on the facts of the case and can withdraw a notice if a case appears to be weak.
“These are decisions prosecutors make every day,” said Senior Assistant Attorney General N. William Delker. “You don’t want to bluff if you don’t have the goods to bring a case to trial.”
The new law will be tested, most likely with litigation, and developed in the field as time goes on, said a number of the panelists. According to Assistant Attorney General Ann Rice, of the AG’s Criminal Justice Bureau, 10 sexual offenders will be leaving prison over the first nine months of this year (two of them this month). No one knows how many of those will be subject to civil commitment petitions. “At no time will there be floods of people eligible for [civil commitment petitions],” she explained.
In anticipation of the volume of cases that will fall under the auspices of the act, the NH Public Defender has set up a branch office in Dover this month that will house a managing attorney and two staff attorneys, and the state’s Dept. of Health and Human Services has established emergency rules to handle aspects of the new law and plans to dedicate part of the State Hospital for a secure treatment center for sexual predators once it secures funding for the project. The Dept. of Safety has been working on procedures to notify county attorneys and the attorney general when sexual offenders become eligible for parole. “If they have not completed sexual offender treatment, they will not be eligible for parole,” said Rice. (More details on these and other developments related to the act in upcoming articles in this Bar News series).
When asked if New Hampshire really needed this law, Superior Court Chief Justice Robert Lynn said “There is not a huge population of people that were not being dealt with appropriately under existing law.” He added, “There is a small but extremely dangerous number of people for whom this law applies.”