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Bar News - September 5, 2008

To Jail, or Not To Jail: A New Push for Alternatives


A study commission meets for the first time this week to take a closer look at alternative sentencing in New Hampshire.

The panel, including members of the three government branches, prosecution and defense attorneys, prison and mental healthcare administrators, holds an organizational meeting on Sept. 5 to examine sentencing alternatives, including greater supervision in the community, more resources for substance abuse treatment and other options in lieu of incarceration.

The impetus for the study commission, created by Senate Bill 484, is that New Hampshire’s criminal justice system must closely examine the sentencing, incarceration and recidivism of criminal offenders in NH, particularly the growing number of drug-related, non-violent offenders behind bars.

Ellen Arnold, 2008-09 NHBA president, in a letter to the membership, said that the first focus of her presidency will be a collaborative effort among the court, the executive branch and the legislature to "examine our punishment strategy for non-violent offenders."

Taking another step in the same direction, superior court justice, Superior Court Justice Tina Nadeau is organizing a November conference which she says will bring together representatives from the NH judicial branch, law enforcement, the NH legal community, mental healthcare providers and mental health advocates.

"It is my hope that inviting all the stakeholders, from legislators, jail superintendents, prosecutors, defense attorneys, police chiefs, mental health and substance abuse providers and judges to this conference will produce concrete ideas to shift the mentally ill and drug-dependent offenders from jail to treatment," said Nadeau in a statement released in early August of this year.

The most far-reaching example of this trend is the creation of the study commission, composed of members both supportive and skeptical of alternative sentencing options. It will determine the current status of sentencing policies and evaluate the effectiveness of new options.

Margaret Hassan, state senator for district 23, was a sponsor of the bill and believes that sentencing alternatives are an essential component of ensuring the efficiency of the NH Department of Corrections and of New Hampshire’s criminal justice system.

The need was driven home for Hassan, a labor/employment attorney at Pierce Atwood in Portsmouth, when, as chair of the Capital Budget Committee, she presided over the 2004 decision to fund $30 million for the construction of a new prison in Berlin.

"I was looking at the figures one day and I saw that nearly two percent* of the NH prison population was composed of traffic offenders," Hassan said. "It costs $32,000 per year, per person, to incarcerate them and it made no sense to me. There had to be other options."

The need for alternatives is echoed within the state’s judiciary, which continues to face growing criminal dockets. Judge Sawako Gardner of the Portsmouth District Court, the site of a new mental health court, says that she is continually seeing the same people before her in the courtroom.

"Without services, they constantly cycle through our system," said Judge Gardner. "The goal is to re-route offenders who have mental health disorders out of the criminal justice system and into the community-based treatment system."

Manchester criminal defense attorney and NH Bar Association Commission Representative Cathy Green, hopes that when the Commission comes together, the members will establish what has worked at district and county levels and implement other programs on a wider scale.

State-wide implementation of sentencing alternatives, says Green, is not only the hope of those in the state government, but was the subject of several recommendations in the 2006 NH Citizen’s Commission Report on the State Courts.

Recommendations 18-23 are directly related to the development and implementation of state-wide treatment alternatives to incarceration and include the creation of a commission to develop pre-trial alternatives, rehabilitation efforts throughout the state’s communities, substance abuse treatment, and state-wide drug courts.

"There is a substantial class of non-violent offenders that would benefit – as would society – if they were getting adequate drug treatment," said Green. "There are no adequate substance abuse programs in New Hampshire. We’re sending people to prison when we know they’ve got problems."

Rockingham County Attorney James Reams, the commission’s NH Association of Counties representative, is more skeptical, citing that 35 percent of the inmates jailed in 2007 were jailed for parole and probation violations. His hope is that analysts can seek reasons for the recidivism and address the issue in a realistic way.

"I think this movement is dealing with opinions, not facts. [The outlook now] is a bit simplistic. We need to look at what we can do to deter the commission of crimes," Reams said.

Editor’s Note: Stay tuned. Bar News will provide more in-depth information on the various local and county alternative sentencing programs already in use.

Also, be ready for a Midyear Meeting CLE on January 23, 2009 – Making a Difference: NH’s Initiatives to Redesign the Criminal Justice System – where faculty – Cathy Green, Sen. Magaret Hassan, Hon. Tina Nadeau and others – will outline the various movements toward developing sentencing alternatives in the state.

*This figure is composed of both habitual traffic offenders and non-homicide/manslaughter DUI offenders.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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