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Bar News - January 20, 2016

Criminal Law: Debtors Prisons in NH and the Rules Proposed to End Them


Proposed changes to NH Circuit Court Criminal Rule 2.7 include requiring judges to appoint counsel for defendants who risk incarceration for nonpayment of fines, but a subsequent proposal would eliminate that requirement.

Both proposals are under consideration by the NH Supreme Court Advisory Committee on Rules, which is scheduled to meet again to discuss them in March. Despite the intense media attention focused on the issue of jailing poor people for being indigent both nationally and in New Hampshire, the practice of denying due process to indigent people continues in the court system, even though law and precedent make it clearly illegal.

In New Hampshire, fine payment in a criminal case is governed by District Division Rule 2.7. If an individual cannot pay a fine when due, the court has the authority to incarcerate that person. Each day the person spends in jail amounts to $50 applied toward the fine. However, before incarcerating someone for non-payment, the court must find the person willfully refused to pay the fine, despite having the resources to do so.

In September, the American Civil Liberties Union of New Hampshire published a report following a one-year investigation, which concluded that the practice of incarcerating the poor after denying them due process was resulting in a modern day debtor’s prison. The report highlighted the fact that people who are incarcerated can lose their home and/or employment, with additional immediate and permanent negative impact on their lives, especially for those caring for young children whose family structure may already be a careful balancing act.

The response to the report was immediate. National news services published stories about the report, and the New Hampshire Supreme Court called for an immediate review of Circuit Court Rule 2.7.

In late November, a proposed substantial revision of Rule 2.7 was sent to the NH Supreme Court Advisory Committee on Rules. The proposed changes range from increasing the rate at which community service can pay off a fine from $10 to $15 per hour, to explicitly defining “willful failure to pay.” The proposed rule states a willful failure to pay “means a defendant has intentionally chosen not to pay the fine when he has had the ability to do so.” The lack of a definition has been an issue of contention nationwide since the United States Supreme Court held that only willful failures to pay could result in incarceration, and the Court’s decision offered no further guidance about how to apply the standard.

In addition, the proposed revisions create a much more defendant-centric rule, making it clear that a court needs to be very careful and thorough before incarcerating someone for failure to pay a fine.

One of the authors of the proposal, Circuit Court Administrative Judge Edwin Kelly, says the rule is a reminder to judges that they need to consider alternatives to incarceration: “The rule articulates what the best practice is and reminds them there are alternatives to incarceration.” Kelly also points out that some people need help articulating their inability to pay and not just why they should not go to jail: “The intent is clear. Before incarcerating someone for non-payment of a fine, that person needs to have a meaningful hearing with a lawyer present.”

This defendant-friendly theme of proposed Rule 2.7 is clearly evident in the requirement that, before incarcerating someone, the court must appoint counsel if the person does not waive their right to counsel.

Having counsel present or to provide assistance in crafting a payment plan can make a big difference for these defendants. The current rule contains no right to counsel, despite the fact that Rule 2.7 is a criminal rule, and the fine being enforced stems from a criminal proceeding, with failure to pay resulting in jail. Currently, individuals charged with a crime have a right to appointed counsel if there is a possibility they could be incarcerated.

These proposed changes underscore the need to approach a client’s non-payment of a fine with the understanding that the court will need to hold a meaningful hearing before determining whether non-payment of a fine should result in incarceration. The court must consider alternatives to incarceration; if incarceration is ordered, the court must justify that decision with written findings of fact.

NH Supreme Court Justice Robert Lynn, chair of the NH Supreme Court Advisory Committee on Rules, has submitted another set of proposals for the committee’s consideration that do not include the appointment of counsel. Lynn sees the fine payment issue as that of “civil contempt” rather than criminal contempt, according to a memo he submitted to the committee.

For now, the rules committee is scheduled to discuss the proposed changes again in March.

Because the application of the rules is left to the discretion of judges, there may be some variation in how they are applied, regardless of which amendments to the rules the court ends up adopting.

Joseph Garrison

Joseph Garrison is an associate with Waystack Frizzell Trial Lawyers in Colebrook, Berlin and Lancaster.

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