The New Hampshire chapter of the American Civil Liberties Union released a report today that details the practice of judges jailing poor people who can’t afford to pay fines – a practice that’s illegal.
The report includes a few case studies, including Richard Vaughan. On July 8, 2014, Vaughan stood before Second Circuit Court Judge John Peter Cyr in Littleton.
Vaughan owed $895 from a DWI charge. It had been a while since he made a payment toward the debt, and Judge Cyr asked Vaughan how he’s going to pay it.
"Your Honor," Vaughan said, "I’ve been out – I had an interview at Pizza Hut the day before yesterday. I’ve applied at Applebee’s, and a lot of places, and I’m just really trying hard to get a job right now so I can pay this fine."
The ACLU’s Gilles Bissonnette said, during this hearing, the court should have given Vaughan the option of a public attorney, and the court should have tried to figure out if he had enough money to pay the fine.
"Mr. Vaughan has no idea what his rights are," said Bissonnette. "And he’s sitting there, and I think you can hear it from his voice, terrified. He did not go in that day thinking that he was going to be jailed and then moments later he was ordered to go to jail for 18 days. I mean, that is an amazing amount of time."
Infographic: How many who went to jail had lawyers?
Estimates for defendants' legal representation generated by the ACLU-NH study methodology detailed above. Data via the ACLU-NH report on debtors' prisons in N.H.
A widespread problem?
Eighteen days in jail – that’s a day for every $50 dollars in debt. That’s state law.
But there’s also federal law going back to the 1800s, and Supreme Court decisions in more recent years. And here comes a word you’ll hear a few times in this story: willful. The law is clear that you should only go to prison for willfully not paying a fine.
"So what we talk about in our report is just how clear and how settled the law is – and unfortunately how systemic it is in New Hampshire for that constitutional principal to not be followed," said Bissonnette.
Buzz Scherr, a professor at the UNH School of Law and a coauthor of the report, said courts are making two errors here: poor people shouldn’t go to jail for not paying fines they can’t afford; and when judges threaten jail time, they often aren’t offering public attorneys to poor people.
"The shocking thing about the report is...what we’re seeing is a non-application of those two principles" said Scherr. "It’s not a misapplication. They’re just no ability-to-pay hearings occurring. And none of these people – in 50 percent of the cases, we estimate – nobody is getting a lawyer."
Here's what the numbers tell us: In 2013, the year the report analyzes, the circuit court system heard 83,000 cases related to fines. And in 289 of those cases, courts jailed people for not paying. The ACLU pulled court records and analyzed 39 of those cases to draw larger conclusions.
The ACLU concludes poor defendants were routinely jailed without determining if they were able to pay the fine. And in most cases, the defendant wasn’t offered a public attorney. The report details three examples.
But Ed Kelly, the judge in charge of the circuit court system, said the ACLU’s number don’t add up to a statewide problem.
"I think it would be wrong for anyone to form conclusions based upon any three cases," said Kelly. "I mean, candidly, you or anybody listening to this report would have to ask themselves, 'Are there three instances in my life, in my work, over the last year that I would not want somebody to be recording and listening to?' "
Infographic: Circumstances leading to jail time for defendants with unpaid fines
Percentage estimates were extrapolated from the sample group of 2013 debtors' prison cases studied by the ACLU-NH. All counties but Merrimack County provided defendant files for study.
The burning house
Dennis Suprenant was one of the minority cases the ACLU identified where the defendant did have an attorney.
"I will say this - he’s not going to be leaving here today until he pays his attorney’s fee," said Judge Thomas Bamberger during Suprenant's hearing in the Nashua Circuit Court, February 2014. "They’ve been due since December of 2012. So that has to be paid today. That’s $302.50."
Suprenant was homeless and owed attorney’s fees, but was about to start a new job. Public defender Suzanne Ketteridge and the judge debate the points.
Ketteridge: But he has done something. He paid for – he went into rehab, he got a --
Ketteridge: -- job. That has to count for something.
Judge: Yeah, it does. It allows him to pay his OCC fees.
Ketteridge: And if he can’t come up with the money today, what will happen.
Judge: Then he’ll go to jail until he pays it.
Ketteridge: Which will send --
Judge: That’s what happens.
Ketteridge: Which means he’ll lose his job, he’ll go right back to where he was before.
Judge Bamberger ordered Suprenant to pay $90 on the spot – everything he had to his name – and then told him to pay the rest by Friday, or face jail time. Gilles Bissonnette says the next day the ACLU filed an emergency petition to the state Supreme Court, which overturned Judge Bamberger’s decision.
"The letter of the law here is to consider the circumstances of his life," says Bissonnette.
Two weeks later, a similar case went before the same judge. Alejandra Corro was supposed to pay off her fine by doing community service. She started to do just that, but then her house caught fire. She had to pass her two sons, ages two and three, to a firefighter through her second-story window. Corro spoke to WMUR at the time.
"I am thankful somebody was watching over me and my children – very much," Corro told WMUR.
In court, Corro was not willfully not repaying the fine. The fire disrupted her ability to pay, she contended. Judge Bamberger disagreed and sentenced her to nine days. Corro spent the night in jail. Then the ACLU filed an emergency petition with the Superior Court, and she was released.
Infographic: Circumstances of defendants jailed without ability-to-pay hearing
New Hampshire moment in the spotlight
The ACLU is quick to point out Judge Bamberger is not a rogue judge – they document cases throughout the state. And Peter Edelman, a law and poverty expert at Georgetown University, said debtors’ prison is a practice gaining attention around the country.
"Of course all of it undermines the concept that we’re a nation that believes in the rule of law," said Edelman. "So it’s very, very scary, really, that this goes on at such a great level."
And to the extent that it happens at all in New Hampshire, Judge Kelly, the head of the circuit courts, said he’s grateful the ACLU report shines a light on the problem.
"Not even one person, not even one person should ever go to jail for nonpayment of a fine when the reason is an inability to pay – period, end of discussion," Kelly said. "What I would like to do is get to a place, and frankly I don’t think it’s going to be very difficult, where the [ACLU] and I can walk arm in arm together to the rules committee and to the Legislature and say, 'We agree. These changes need to be made.' "
That process might start right away. Supreme Court Chief Justice Linda Dalianis released a statement today saying the head of the circuit courts and the reports’ authors will sit down to look through the state’s procedural rules, and begin to draft out possible changes.
For more on the study, you can read the entire ACLU-NH report right here: