NH judges, lawyers draft rules to not jail poor who owe fines

April 25, 2016

Judges and lawyers for the New Hampshire Civil Liberties Union have hammered out an agreement that would halt the jailing of indigents who fail to pay fines until a lawyer can be appointed for them. Some Indiana trial courts plan to utilize a risk assessment tool to identify who can be discharged without posting bail.

A top administrative judge says the rule should ensure that only flagrant violators might wind up behind bars, even if they have lawyers. The proposed court rule change comes seven months after civil liberties union lawyers released results of a yearlong analysis showing that scores of defendants who owed fines for minor offenses were jailed when they couldn't afford to pay, and without counsel being appointed.

The Judicial Branch's Advisory Committee on Rules will hold a public hearing on the proposed rule changes on June 3, then make recommendations to the state Supreme Court. The justices could enact the rules on a temporary basis pending final approval later this year.

While both sides still differ on whether the problem was systemic or more limited in scope, as the judges contend, they say they collaborated to work out the proposed rules changes that call for a hearing on the defendant's ability to pay and make appointment of a lawyer mandatory when incarceration becomes a likely outcome.

"In my opinion there weren't many cases in which this was happening, but even one is too many," Judge Edwin Kelly, who heads the circuit court division, told The Associated Press last week.

"We're telling judges to work with the person," Kelly said, of training sessions he and Judge David King have been holding, even before any change takes effect. He said jail should only be considered when a person who owes a fine or community service has the means and flagrantly refused to meet court-imposed conditions of release.

Data collected by the ACLU of New Hampshire and released in September shows 289 defendants who owed fines in 2013 were jailed in nine of the state's 10 counties. Merrimack County didn't provide data.

The analysis showed that taxpayers spent nearly $167,000 to detain debtors who owed fines totaling less than half that. Attorney Albert "Buzz" Scherr, of the University of New Hampshire Law School and one of the study's leaders, called that "stupid economics."

The civil liberties union randomly selected 39 of the cases to study, finding that a third of those defendants were jailed without being appointed a lawyer. In 18 percent, the defendant had no lawyer and agreed to go to jail. In 25 percent, the defendant had a lawyer and agreed to jail time.

And there have been cases since 2013, civil liberties lawyers say.

Alejandra Corro, a 22-year-old single mother of two, was jailed in March 2014 — a month and a half after fire destroyed her apartment — because she didn't complete community service in lieu of a fine for stealing children's clothing. She had done 20 hours but still owed 42 hours, which a circuit court judge said was worth $420, and ordered her to jail for nine days.

"I'm not sentencing her. She sentenced herself," the judge said, according to court transcripts. ACLU lawyers got her and two others released by appealing to higher courts.

Scherr said last week that judges seem to be getting the message.

"It's not just rule changes that are going to make a difference, it's as much a mindset," Scherr said. "Judge Kelly's been very good about starting that process and not waiting for the rules to go into effect."

He said the ACLU in recent years had made strides in Colorado, Ohio, Louisiana and Michigan in curbing the practice of jailing the poor because they are unable to pay fines. The Civil Rights Division of the U.S. Department of Justice in March issued a report urging judges and court administrators to be sure bail and fine collection efforts conform to constitutional provisions.

"Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release," wrote Vanita Gupta, principal deputy assistant attorney general.

Indiana judges noted in a recent Indiana Lawyer article that while arrestees are presumed innocent, they are treated as if they are guilty because they cannot post bail.


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