Citizens for Criminal Justice Reform – New Hampshire

Pros and Cons of key NH crime bills in 2012

Lawmakers have submitted nearly a hundred criminal justice bills this term, and the board of Citizens for Criminal Justice Reform has voted unanimously to support or oppose the following bills. It is our hope here to give readers enough information on both sides to make up their own minds on each piece of legislation.

Bill would clarify the law regarding consecutive sentences 

HB 1568 would protect the due process rights of New Hampshire citizens by adding language to the criminal statutes expressly allowing judges to use consecutive sentencing when they find it necessary, but limiting the number of consecutive terms that could be handed down at one setting to two times the longest sentence authorized for the most serious crime charged. Adding these rational limits to consecutive sentences will prevent the abuse of consecutive sentences and help reduce future corrections costs and limit prison overcrowding. HB 1568 would also correct an oversight in the the statutes regarding how parole is to be administered in the case of consecutive sentences. At present, the Adult Parole Board has usurped legislative authority by effectively writing the law in this crucial area. The House public hearing is Tuesday, Feb. 7 at 1 p.m. in LOB 204. 

Here’s the bill tracking link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2768&sy=2012&sortoption=&txtsessionyear=2012&q=1

Bill would let inmates earn time off through hard work

HB 1654  gives inmates time off their minimum sentences for improving themselves: three days a month for mental health counseling or treatment, four days a month for school programs, and two days a month for a prison job.  They could get another 90 days off for earning a GED, 120 days for a high school diploma, and 180 days for an associates, bachelors, masters or doctoral degree. Inmates could get an additional 60 days off for completing a vocational or mental health program. An inmate group at the prison met with Rep. David Welch and drafted this legislation at his invitation. Victim advocates, prosecutors and former House Speaker Donna Sytek opposed the bill as a violation of the principle of truth in sentencing. CCJR testified that times have changed. Today the problem is crowded prisons and burgeoning prison costs driven by high recidivism. The bill also differs from former good time bills that led to truth in sentencing laws. Under HB 1654 an inmate would earn their time off the minimum sentence only by hard work to improve, not just by keeping a clean disciplinary record. The bill went to a five-person subcommittee that included two of the bill’s sponsors. Here’s the tracking link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=3038&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=hb1709&q=1

Should incompetent violent offenders get life? 

SB 270 would imprison a person for life if they are civilly committed after being found incompetent to stand trial for murder, manslaughter or rape. The Civil Liberties Union, the Association of Criminal Defense Attorneys and the Disabilities Rights Center joined Citizens for Criminal Justice Reform in speaking against this bill as unconstitutional. Judging by the discussion among members of the Senate Judiciary Committee afterward, the bill is probably going to die on the Senate floor,  although the hearing in January was continued to Feb. 2. That allowed Charlene Steele to tell lawmakers about the murder of her daughter Jasmine in 2005 by a man who is free today and living in his own apartment.

“He is walking the streets,” Steele said. “Where is the justice for my child?”

Similar bills by the same sponsor, Sen. Jeb Bradley, have failed in previous legislatures.

“I understand the constitutional problems with this bill,” Bradley testified. “I’m grateful you have given my constituents the opportunity to tell you what happened.”

Here is the legislative tracking link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2835&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=sb270&q=1

Should Casey Anthony have received the death penalty?

SB 271-F and HB 1709 (identical bills)  These two bills would make it a Class A felony for a parent or guardian to fail to report a child less than 12 years old as missing for more than 24 hours, or for failure to report within 6 hours of the child’s death. This is New Hampshire legislation to correct the widely perceived injustice in a single well publicized  Florida death penalty case. 

A jury acquitted defendant Casey Anthony of capital murder after she waited 31 days to report her two-year-old daughter Caylee was missing.  The two bills are  part of the widespread public outcry over that verdict. The question for lawmakers is whether a single perceived miscarriage of justice on the side of lenience in another state should call for a new felony law in New Hampshire. The state already has a suitable child endangerment law. Another issue: Does the bill dishonor the courage of Florida jurors to render an innocent verdict in a tough-on-crime state amid worldwide scrutiny?

The House Criminal Justice Committee heard emotional testimony for and against HB 1709 in a hearing Jan. 31. That afternoon the reps voted against killing the bill and then against endorsing it. Rep. David Welch said the House would get a second bite at the apple if the Senate bill passes in the upper chamber. House Criminal Justice Committee chairwoman Elaine Swinford took a phone call from House leadership during the impasse. The Republican committee members then held a caucus excluding the public and the Democrats. Afterward Swinford indefinitely postponed action on HB 1709. 

At the hearing for SB 271 on Feb. 2 the Disabilities Rights Center, the Criminal Defense Lawyers Association and CCJR opposed the bill. Prime sponsor Sen. David Boutin said senators have all received hundreds of emails calling for a bill like this named for Caylee Anthony, the dead girl. He testified that two dozen  states have similar legislation in progress, and some of bills call for a 10-year minimum sentence and $15,000 fine. 

“The American psyche is traumatized and outraged by what took place (in Florida),” Boutin told the Senate Judiciary Committee. “The mother took more than a month to report her missing child. We are compelled to give our constituents the comfort of knowing law enforcement can deal with a similar thing here.”

Link for SB 271:http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2882&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=sb271&q=1

The link for HB 1709: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=3038&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=hb1709&q=1

Bill sets up board of experts on sex offender policies

SB 277 creates a sex offender management board with 18 experts on all sides of the issue, including a representative from Citizens for Criminal Justice Reform. Victim advocates and the Department of Safety have expressed support for the bill, which our nonprofit agency originated. Here is the tracking link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2897&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=sb277&q=1

Below is the testimony of Citizens for Criminal Justice Reform at the public hearing in January:

Testimony on SB 277 creating a sex offender management board

By Chris Dornin, Chairman, CCJR

Sex offender laws are often named for murder victims, as with the Adam Walsh Act and the Jacob Wetterling Act. We have begun to understand that these laws to honor the memory of a lost child may paradoxically endanger the public. They may also be unconstitutional. Two years ago the Maine Supreme Court ruled that the public sex offender registry was an illegal retroactive punishment for many of its registrants. The Ohio Supreme Court issued a similar decision this summer in the landmark Williams versus Ohio case.  

But here’s the strange part. The rape crisis centers in Cleveland and Texas intervened in support of the Ohio sex offenders. The lawyer for these victim advocates, Margie Slagle, argued that Ohio’s Adam Walsh Act, passed in June 2007, “fundamentally transformed classification, registration, and community notification requirements under Ohio's sex offender laws. In particular, the pre-AWA law classified adult sex offenders based on the individual's likelihood of committing future offenses and the offender's risk to the community. The AWA abandons risk based classifications for offense based classifications. While protecting Ohioans from sex offenders is a compelling interest- and indeed, is the core mission of each of the amici- none of the changes implemented as part of Ohio's AWA has been proven to achieve that goal. Research shows that the law's more burdensome requirements on law enforcement, the public, and sex offenders can cause higher levels of recidivism and thus pose increased danger to the community. More onerous sex offender registration and community notification laws threaten to harm the very people they are intended to protect and to undermine the goals of community safety and treatment of offenders. These laws perpetuate myths and create a false sense of security. Research demonstrates that victimization can be reduced when sex offenders successfully reenter the community. These changes also put law enforcement agencies, already in budgetary crises, in the position of spending precious dollars on monitoring low risk individuals with a limited impact on public safety. Thus, any argument that Ohio's AWA is simply a remedial law designed to protect children and the public from sexual abuse and sex crimes is seriously flawed. Ohio's AWA is not based on empirical evidence or proven research, but on fear and misinformation.”

Aware of similar problems, a number of states have set up permanent advisory commissions of experts on sex offender issues to propose science-based, rational policies on one of the most emotional issues facing lawmakers. Typically, these groups are called sex offender management boards, although their titles and duties vary from state to state. Most of them monitor and study the sentencing, incarceration, treatment, registration and community restriction policies and practices for sex offenders. At their best, these boards can function something like the New Hampshire Office of Legislative Budget Assistant by providing objective, data-rich recommendations. 

The Pennsylvania board evaluates the risk posed by each sex offender and reserves active community notification for those deemed to be the highest threat. It’s a very small population, comparable to the offenders New Hampshire might civilly commit for an extra five years under our Child Predator Act passed in 2007.

The California management board studied the merits of imposing residency restrictions on sex offenders and talked the legislature out of using them. California voters went on to pass Proposition 83 by referendum over the objections of most lawmakers. It barred sex offenders from all the cities and drove up the rate of homelessness among sex offenders by 800 percent in the first year.

The California board learned from a study by the Minnesota sex offender management board, which reviewed the records in 224 sex offenses to see if residency restrictions might have prevented those crimes.  The perpetrators never approached their victims near a park, pool, library, school or daycare center. Hearing this news, the Minnesota legislature rejected residency restrictions as a cure without a problem. 

The proposed New Hampshire management board might choose to study the comparable sex offender policies here. In the Jennings versus Dover case three years ago, Dover District Court found that city’s residency restriction unconstitutional. It drove half the sex offenders out of town in the first year. Several communities elsewhere have similar ordinances, including Franklin. Franklin Mayor Ken Merrifield has told me half the sex offenders stopped registering in his city in the first year of their residency ordinance. Three years ago the Manchester Police persuaded their aldermen to kill a proposed sex offender residency ordinance, fearing it would drive many registrants underground. 

The sex offender management board contemplated by SB 277 would rely on members from government agencies serving as part of their job and on volunteers from community programs that know and care about the issue.  Funding for their travel expenses would come from the budget of the New Hampshire Division of Air, Rail and Transit. This volunteer model, with or without nominal reimbursement for mileage, can work. The Interagency Commission on Women Offenders has been active for years and always has a good turnout. 

Bill would keep annulled crime records public

HB 1168 maintains all public records of a criminal conviction that has been annulled, including news articles on line, but would post the judge’s order of annulment in the court file and make a note of the annulment in the person’s electronic criminal record. Today only nonviolent offenders can earn annulment, and only by showing strong evidence he or she has atoned and reformed. The bill leaves the media free to write about the annulment and the underlying crime, a net gain in access for journalists. Offenders receive one advantage. Potential employers may only ask job applicants if they have ever been arrested or convicted of a crime “that has not been annulled.” The bill arguably increases public access to these harmful records and perpetuates their stigma. HB 1168  does not solve a growing problem in an internet age- how to protect citizens who have won back the right to their good names. 

The blurb in the House calendar for the Feb. 1 floor session said the bill would remove electronic records and information of an offense upon entry of an order of annulment and “enhances the rehabilitative aspects of an annulment.  Anything that encourages a successful rehabilitation of citizens is to be applauded.” HB 1168 as first drafted indeed removed all electronic records of the conviction, which would have been a strong benefit for ex-offenders. But lawmakers heavily amended the text in committee.

Here is the link for tracking the bill. http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx? lsr=2099&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=hb1168&q=1

Big Brother could be watching you

HB 445 Requires a retailer or manufacturer to label any product that contains a hidden  electronic tracking or GPS device. Many goods large and small have them these days, including cell phones, laptops and cars. The bill lets the buyer demand to know how that tracking information will be used. Failure to respond would be a Class A misdemeanor and the person being tracked can sue for $1,000 or for the actual harm done to them, whichever is greater. Police could use the devices after getting a court order or warrant. In a brave new world, the bill gives citizens some protection from Big Brother snooping on them through third parties. Retailers and lobbyists for the wireless industry testified the bill would make it harder for them to take satisfy the burgeoning demand for these products. Consumers know what they can do, and that’s why they want them. The Department of Transportation testified that the bill would have no impact on the use of millions of EZPass transponders. 

Here’s the bill link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=135&sy=2012&sortoption=&txtsessionyear=2012&q=1

Big Brother has even more hi tech ways to spy on you

HB 1537 bars private citizens from using electronic scanning devices to spy on people through walls, but lets the police show probable cause to get a warrant and use the same equipment as part of a stakeout or investigation. The legislation may be a few years premature, but it is worth supporting to head off a threat to privacy that could easily emerge when this scanning equipment becomes widespread. The hearing is Mar. 1 at 2:30 p.m. in Room 203 of the LOB. 

Here is the tracking link. http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2182&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=hb1537&q=1 

Should 17-year-olds go to prison or youth center?

HB 1667 would make a 17-year-old a juvenile under criminal law, a one-year increase in the age of majority for prosecution and sentencing. That assures most minors of doing time in a juvenile facility under juvenile law, which relies heavily on alternatives to incarceration. Current law allows the state to try as adults any young people who commit certain major crimes. The prime sponsor of HB 1667, Rep. Mary Stuart Gile, gave lawmakers several studies showing the teenage brain is still formative. She urged the House Criminal Justice Committee to let these young offenders escape incarceration among older offenders who prey on the young and teach them to become better criminals. Maggie Bishop, director of the Division of Children, Youth and families, supported the bill and said the Sununu Youth Detention Center has only 50 inmates, with capacity for 150. Right after the hearing, the committee voted 13-2 to kill the bill with almost no discussion. 

Here is the link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2303&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=hb1667&q=1

Attorney general would have to stand for election

CACR 29 would change the constitution to elect the attorney general to a two-year term. The bill results from anger among Statehouse Republicans at Attorney General Mike Delaney for his refusal to join other states in a class action suit against the new federal health insurance law. In his defense, Delaney cited the constitutional separation of powers between the executive and legislative branches. 

County attorneys already face election every two years, and most of them enjoy the challenge. But it is probably dangerous to subject these local prosecutors to any kind of political pressure and temptation. Some of them play up to the tough-on-crime outlook in  the media and the popular culture. The current system buffers the AG who takes unpopular stands in defense of the state constitution and state laws. U.S. Sen. Kelly Ayotte defended the state’s parental notice of abortion law when she was the attorney general serving Democratic Gov. John Lynch.  The public hearing for CACR 29 was Jan. 24. 

Here’s the tracking link. http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2319&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=CACR29&q=1

Bill would make teen electronic “sexting” a crime

HB 1562  makes it a crime for teenagers and children to  send lewd images of themselves to friends. The young person who fails to report receiving the image would be guilty too. The first offense is a violation, the second a class B misdemeanor. These kids wouldn’t have to appear on the sex offender registry. But private registries have a way of becoming public. We would support an amendment to study the scope and causes of the sexting problem among kids before doing anything about it. Killing the bill is a good option too. The hearing is Feb. 9 at 1:30 p.m. in Room 204 of the Legislative Office Building.

The tracking link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2643&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=HB1562&q=1

Give addicts and alcoholics treatment, not prison

HB 1665 would adopt a model drug treatment act for New Hampshire that emphasizes drug courts and rehabilitation over incarceration. At the hearing Jan. 25, the bill received strong support from lawmakers in both parties. Two women who recovered their lives and their families through drug court gave moving testimony that it works. Justice Tina Nadeau, chief justice of the Superior Courts, told lawmakers this kind of intervention saves the state money by keeping people out of prison or jail and helping them to avoid recidivism. 

The tracking link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2749&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=HB1665&q=1

Let 11 jurors convict you, not all 12

HB 1464 lets 11 jurors convict a defendant instead of all 12. Capital murder cases would still require a unanimous verdict of guilt. The legislation would remove one of the precious  rights the colonies seceded from England over. The bill faced strong opposition at its hearing Jan. 25 and was slated for a committee vote Feb. 7. 

Here’s the tracking link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2358&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=HB1464&q=1

Rape would deserve 40 years to life

HB 1518 increases the minimum sentence for aggravated sexual assault to 40 years. A second offense would call for life without parole. The bill would potentially incarcerate for four decades mentally ill or disabled people who have consensual sex with each other and lawyers or doctors who have similar relations with their patients or clients. The public hearing is Feb. 9 at 10 a.m. in Room 204 of the LOB. 

Here’s the tracking link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2360&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=HB1518&q=1

Bill would publicize teen sex offenders and victims

HB 1465 makes public the criminal and clinical records of a juvenile convicted of any violent or sexual crime, even an 11-year-old perpetrator with 11-year-old victim. In some cases that information would call attention to a victim in the same family or attending the same school. A December 2009 study by David Finkelhor of the University of New Hampshire colleagues for the US Justice Department analyzed national sex crime data from 2004. In that  year the estimated population of underage sex offenders was 89,000, and they had committed 35.8 percent of all sex crimes reported to police. One in eight juvenile sex offenders was under age 12. At the public hearing on Jan. 19 several members of the Children and Family Law Committee said they would oppose the bill. 

Here’s the tracking link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2359&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=HB1465&q=1

Victimless “crimes” might never go to trial 

HB 1531-FN This bill would amend RSA 626:3 to let a defendant win acquittal by showing there was no victim in the alleged crime. Presumably some drug users could take advantage of the legislation to avoid prosecution or conviction.  It is unclear whether the bill would let a consumer of child pornography in print form or online assert the same defense. That issue will likely arise at the Public hearing Feb. 9 at 1 p.m. in LOB 204. 

The tracking link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2108&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=HB1531&q=1

Let jurors acquit people who are technically guilty

HB 1397  says the court shall instruct the jury in a criminal case of its right to judge the application of the law in relationship to the facts in controversy. The court would also be required to permit the defendant or counsel for the defendant to explain this right to the jury. The bill would let jurors use their common sense to be lenient to someone undeserving of the full punishment in a perceived bad law. When the law is a proverbial ass, that power could prevent a miscarriage of justice.  A bill like this can cut two ways. It was rare a generation ago for white juries in the South to convict a white person charged with harming a black. On balance, CCJR supports HB 1397, but it will bear close watching if it becomes law. 

The link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2593&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=hb1397&q=1

Let jurors impose death in non-capital cases

HB 1247 is similar to HB 1397, with one huge difference. The jury could disregard the law by imposing a much tougher sentence than statute calls for. That’s a formula for vigilante justice. Here’s the most problematic clause of the bill: 

The court shall tell the jurors that they may decide according to their judgment of the case, that either lesser penalties than the statute states or more severe penalties than the statute states should apply. The penalties may include the death penalty. 

Tracking link: http://www.gencourt.state.nh.us/bill_status/bill_docket.aspx?lsr=2792&sy=2012&sortoption=&txtsessionyear=2012&txtbillnumber=hb1247&q=1