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Bar News - October 21, 2015

Opinion: Report on Debtors’ Prisons in NH Shows Problem Not Systemic


Editor’s note: The following is an edited version of an op-ed that first appeared in the Valley News on Sept. 30 in response to a column by Jim Kenyon about the NH ACLU report on debtors’ prisons.

Accepting responsibility for mistakes we make is a character trait all of us, as parents, do our best to instill in our children. Being held accountable by our courts is something our society expects of those who commit offenses against others or, in any way, violate our laws. Our state constitution requires that our judges be as fair as the “lot of humanity” will allow… wise people, those drafters of our state constitution. They recognized something I have known in a very personal way for the 30 years I have been privileged to be a judge in this state. The judicial appointment I received did not remove me from the “lot of humanity,” nor did it remove any of the many judicial colleagues at all levels of court that I have worked with since 1985.

Judges come to work every day prepared to do their level best to administer justice fairly, firmly and compassionately regardless of the level of offense. We are charged with following the law and our constitutions, and occasionally, in our attempt to strike the delicate balance between our constitutional responsibility to hold offenders accountable and the need to show the compassion that is appropriate in all human interactions, we may make a misstep. Those very wise 18th century drafters of our constitution knew that would happen because they knew, clearly, that judges are only human and will make mistakes just like the rest of that “lot of humanity.” To protect our citizens and the state in general, they also established protections such as our appellate system to correct those errors.

Since last month’s release of the NH Civil Liberties Union report, I have acknowledged the responsibility we have as judges to do all we can to get it right every time, while at the same time accepting our own “human condition” and ability to make mistakes. I have also steadfastly refused to second guess any judge without having all the facts in front of me and have cautioned others do the same.

At the same time, I have been clear in my commitment to do what I took an oath to do 30 years ago, which is to uphold the constitutions of New Hampshire and the United States. In the exercise of that responsibility, I have vowed to work with the authors of the report to come up with whatever additional safeguards may be necessary to assure that each person appearing in our courts be afforded every constitutional right to which they are entitled. In short, I am in full agreement with the premise of the NHCLU study, which is that no person should be jailed for nonpayment of a fine when the reason for the nonpayment is an inability to pay. However, I strongly disagree with the conclusion of the report that the instances the authors reviewed demonstrate a systemic problem.

The NH ACLU report’s authors reviewed 39 out of a total of 249 cases in which people were jailed during calendar year 2013 for nonpayment of fines. What the authors did not point out was that same year the circuit court system handled 83,000 criminal/fine-based cases. Of those tens of thousands of cases, only 249 went to jail for nonpayment and of those, the report suggests 148 did not have lawyers. Put another way, 82,751 of those cases were handled without anyone being sent to jail for nonpayment.

Rather than demonstrating a systemic problem, I believe those numbers demonstrate that our judges use jail only as a very last resort to enforce their orders and hold people accountable. We can do better, as all of us can, no matter what our profession. We are committed to that.

Respectful discourse and debate, working with those with whom we may disagree, reaching resolution by listening carefully and keeping in mind our overriding goal of a fair, impartial and compassionate court system ought to be our focus. I am happy to say that it is my focus and that of the authors of the report. We met within days of the issuance of the report and agreed to spend our time on our points of agreement and set aside our disagreements while at the same time acknowledging them. From this conversation, I feel certain we will agree to some rule changes, perhaps some statutory changes and likely the development of protocols. That, in my opinion, is the way democracy is meant to work.

Judge Kelly

Judge Kelly is the chief administrative judge of the NH Circuit Court.

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