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Bar News - March 13, 2009

President’s Perspective: One in One Hundred


Ellen Arnold

According to the Pew Charitable Trust, for the first time in the nation’s history, more than one in 100 American adults is incarcerated. In fact, the United States has the highest incarceration rate in the world. Not surprisingly, the costs of incarceration are significant. Not only are they structural (expanding old and building new prisons), but they are also operational, including the costs of personnel, costs of medical care for aging inmates, and the collateral cost to families and children. In New Hampshire, the estimated cost per inmate/per year is $31,000.

In the 2007 legislative session, the requested estimated cost to expand the existing Berlin prison was about $20 million and the current estimated cost of a new women’s prison is $37 million. To look at these figures in context, consider that the entire state capital budget is approximately $100 million. Particularly in these tough economic times, are we spending wisely?

Remarkably, the increase in the rate of incarceration is not matched by an increase in growth of crime or an increase in the population at large. Rather, it is the result of current sentencing practices and violations of terms of probation or parole.

When I became Bar president, one of my interests and initiatives was this topic, primarily as a result of my exposure to it through the district and family courts to which individuals and families returned over and over again without any apparent solution or resolution of the underlying causes which brought them to court in the first place. As the Drug Court and other targeted approaches were explored and adopted, recidivism rates dropped and individuals and families were able to become more independent and productive.

In 2005, the Citizens’ Commission issued its report and specifically recommended a review and implementation of sentencing alternatives. From the Department of Corrections to the mental health community, from prosecutors and law enforcement to public defenders, many have been asking: "Are we being smart on crime?" The answer – uniformly – has been "No."

In order to explore these issues, individuals representing a diverse group of interests have come to the table in New Hampshire to evaluate the current conditions and explore opportunities for alternatives. An increasing number of states are diversifying sanctions and their approaches to offenders in order to insure that not only is the public protected, but also that offenders are held accountable, while states strive to reduce recidivism and promote rehabilitation. These alternative programs hold promise.

Statewide Initiatives

Recently, at the Bar Association’s Midyear Meeting, a program was presented on Sentencing Reform: NH’s Initiatives to Redesign the Criminal Justice System. It provided an opportunity for members to discuss the significant work that has been occurring during the past year around the state. In last year’s legislative session, Senator Maggie Hassan was the primary sponsor of a bill which created a commission to investigate alternatives to incarceration for non-violent offenders and the cost savings related to those alternatives. Although the Commission is in the process of finalizing its report, Senator Hassan, as a panelist at the Midyear program, explained that the Commission had arrived at a consensus: research does exist about our current sentencing system which supports the need to change our approach. The Commission found that:

· The recidivism rate in New Hampshire is too high, higher than in many other states.

· Correction costs are too high as well.

· Treatment is often better than incarceration.

· There are often better ways to monitor non-violent offenders then to put them in our jails.

In November 2008, Superior Court Associate Justice Tina Nadeau chaired a statewide conference on mental illness, substance abuse, and the criminal justice system. This conference brought together individuals from many disciplines that have frequent contact with offenders, some of whom are people with mental illness and other co-occurring disorders. The program was attended by 337 participants. It included representatives from the state legislature, county commissioners, law enforcement, the judiciary, state and county prosecutors, defense attorneys, mental health providers, substance abuse providers, alternative sentencing program managers, and representatives from state and county corrections.

The goal of the conference was to begin to create county-specific programs to help reduce recidivism, increase public safety, and make communities better able to cope with alternative sentencing procedures. In fact, county breakout groups developed preliminary action plans for their communities and are engaged in county meetings to refine and pursue these plans.

One example of a work in progress is a Seacoast effort in which the Portsmouth Mental Health Court and the police have been working to explore diversion ideas. They meet regularly and now have a system to provide immediate counseling and diversion in appropriate cases. Significantly, the channels of communication have been opened so that the right people are talking at the right time.

Another initiative related to this issue was the reestablishment of the Inter-branch Criminal and Juvenile Justice Council (ICJJC). The Council was established to:

1. Provide leadership in the development and implementation of effective criminal justice policy.

2. Foster communication and cooperation among those involved in or affected by the criminal justice system.

3. Inform and engage the public regarding criminal justice issues.

The resurrection of this committee has resulted in the establishment of an Alternative Sentencing Task Force which has recently begun meeting and which hopes to make significant progress on the topic.

Can we be smart on crime?

The nationwide research and our experience in New Hampshire suggest that specialty courts make a difference, when the right individuals are directed to them. Research also shows that incarceration for low- and medium-risk individuals is often not the most effective way of reducing recidivism. In these dire financial times and when the average cost of incarcerating an inmate in New Hampshire is so high, creating an outcome-based system that gives skills to offenders and creates a framework and support system for them in the community will save the state money.

Not surprisingly, this is not a simple problem with a simple solution. The legal community and the public at large need to be engaged and educated in our efforts to make the system smarter and more humane. The fact that constituents from all perspectives agree that our policies need to be reexamined, data collected, and creative options considered, has created an opportunity for change.

As this issue is examined and evolves, I hope that Association members, both professionally and personally, will become engaged and help create a system that is smart on crime.

Ellen L. Arnold, associate general counsel for Dartmouth College, is the 2008-2009 NHBA president.

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