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Bar News - June 15, 2016

Court News: Committee Debates ‘Debtors’ Prison’ Rules


The Supreme Court Advisory Committee on Rules spent more than an hour hearing testimony and debating a proposal that would provide a right to counsel at state expense for defendants who risk incarceration over unpaid fines, and could hold spouses responsible for those fines.

The proposal followed a report last year by the New Hampshire chapter of the ACLU and UNH Law professor Albert “Buzz” Scherr that found certain judges were sending defendants to jail to pay off fines without hearings on whether they could afford to pay the fines.

At the public hearing June 3, Scherr and attorney Alan Cronheim, president of the NH Association of Criminal Defense Lawyers, argued before the rules committee that the situation the proposal seeks to address is not the same as a civil child support matter, because the case types are fundementally different, and the finances of parties in parenting cases are already part of the court record. NH Supreme Court Justice Robert Lynn, who chairs the rules committee, had expressed concern that providing a lawyer for criminal defendants in these cases could create a slippery slope, resulting in challenges in child support matters.

NH Superior Court Judge Will Delker, a rules commmittee member, said the explanation Scherr gave was “compelling and satisfactory,” but, he asked, what about the scenario of a civil debtor who has been ordered to pay?

“It’s an analogy,” Scherr said. “It’s not an off-the-wall analogy, but it’s a very imperfect analogy.”

The committee did not vote on the proposal but discussed the possibility of implementing it as a six-month pilot program, which could be accompanied by proposed legislation next year, said Sen. Dan Feltes, a committee member.

The committee planned to meet again in July to vote on the issue.

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