N.H. Lawmakers Consider Repealing Some Mandatory Minimum Sentences

Mar 28, 2016

In New Hampshire, pretty much only rape and murder convictions can land a defendant behind bars for the rest of his or her life. Burglary? With a record? You might get fifteen years. Unless you’re Kevin Balch.

 As Balch’s original trial attorney puts it, “This case absolutely stands out in my opinion as one of the most unfair and unjust sentences, ever.”

Balch had a record of break-ins. After burglarizing a home in 2012 and taking six guns, a Grafton county prosecutor charged him as an armed career criminal, and she charged each gun as a separate offense. Because the legislature had passed a mandatory minimum of ten years for each offense, 33 year old Balch ended up getting 60 years in prison.

Now, New Hampshire lawmakers are considering repealing that mandatory minimum sentencing law, as well as two others. It's part of a national movement to repeal mandatory minimum sentences after federal-level research showed they don’t improve public safety but do disproportionately incarcerate people of color.

After succeeding in the House, the bill is now in committee in the Senate.

Attorney Len Harden says, for Balch, the mandatory minimum laws meant the judge’s hands were tied, when it came time for sentencing.

“A young man was sentenced to serve essentially a life sentence for committing burglaries without any violence to any person or injuring anybody.”

The state Supreme Court upheld Balch’s 60-year sentence.  But in their decision, they wrote, “We invite the legislature to reexamine the severe penalties” that result from mandatory minimums. 

And that is just what the legislature is doing.

Since the 1980's, lawmakers have put thirty mandatory minimum sentences on the books in New Hampshire. This bill would eliminate three. Minimums for armed career criminals like Balch, though cases like his are rare. Also up for debate are mandatory minimums for habitual driving offenders and people who are caught driving without a license - both far more common.

An earlier version the bill eliminated all mandatory minimums, including drug offenses and DUIs.

During a recent Senate Judiciary hearing, a committee member asked co-sponsor, Representative Renny Cushing: if mandatory minimums don’t work, why not do away with them all?

In a nutshell, Cushing says, it’s “just political reality.”

“Some of the crimes we opted not to remove are frankly high-profile hot button issues. We decided not to take up sex offenders.  Drug dealing.”

This bill is backed by both Republicans and Democrats. It’s endorsed by the ACLU, the state defense attorney’s lobby, as well as by the majority of people on a statewide criminal and juvenile justice council.

But Hillsborough County Attorney Dennis Hogan says he sees nothing wrong with the law as it is. He says mandatory minimums – especially for driving offenses – are useful. “So people know what they’re getting into, and so people can say ‘oh boy I did it once, look what’s coming to me if I do it again.’”

Attorneys on the other side say the law doesn’t consider an individual’s life story. Balch’s original attorney, Len Harden, sees habitual offenders facing mandatory one year jail terms all the time.  For example, he says, “I have a client who was a certified as a habitual offender because she had a prior DUI, she had a couple operating under suspension charges.”

As Harden tells it, the woman lives in the North Country, where there’s little public transportation.  There, she supports a daughter with disabilities. So she drove to work. One day a delivery truck backed into her parked car. The police were called, ran her plates and she was looking at a year in jail. But, he says, “in that case, the police prosecutor certainly took mercy on her and decided not to bring it as a felony.”

Of course, 60-year prisoner Kevin Balch’s prosecutor didn’t reduce his charges.

And supporters of the bill say it shouldn’t be up to prosecutors to decide defendants’ sentences: it is judges who are appointed for their impartiality and discretion.

Governor Maggie Hassan has not said whether she will veto the bill. For now – it’s in the hands of the Senate.