A new law will ensure defendants facing jail time because they can’t afford to pay their fines are appointed an attorney.
The bipartisan bill cleared the House and Senate, and was signed into law by Governor Chris Sununu last week. It’s an effort to curb the illegal practice known as debtors’ prisons, which a 2015 report found was occurring in New Hampshire courts.
That study was co-authored by the New Hampshire ACLU and Buzz Scherr, a professor at the UNH School of Law.
Scherr spoke with NHPR's Morning Edition about this issue.
Let’s start by defining what we mean when we talk debtors prison – what is the issue here?
The issue is when somebody has had trouble paying their fine or isn’t paying their fine, courts we found through a study what happens more frequently than not is a judge will call somebody into court and say can you pay your fine, and the person will say no I can’t, and the judge will say you’re going off to jail to serve this off at $50 a day. That’s what we found in a study we started three and a half years ago now. The fundamental issue is twofold. One, it’s unconstitutional to jail someone for a failure to pay a fine if they don’t have the ability to pay the fine. Number two, it’s inappropriate at that hearing whether you’re deciding whether they can pay that fine or not, or whether they’re going to go to jail or not, that you don’t have a lawyer. So both of those things were not happening in a comprehensive study we did of the circuit court system, a report we published in September 2015. It was pretty clear this was happening on too regular a basis.
This was an issue that you and others tried to address last year through the changes to rules in the circuit court system – what happened there?
Once we published our report, we started working with the administrative judges of the circuit court system, judges Edwin Kelly and David King, to come up with a set of proposals to change the circuit court and for that matter the superior court rules to make sure that there were substantial ability to pay hearings when a fine wasn’t being paid to see if the person could afford to pay it or not. And two, that there would be a lawyer appointed for somebody who couldn’t afford a lawyer for those hearings, what we call “end game” ability to pay hearings.
And the state Supreme Court ultimately rejected these changes?
They accepted a good number of them. They incorporated procedures that made it much more certain that the inability to pay hearings would occur, but what they rejected specifically was the appointment of counsel in those circumstances. They essentially deferred to the legislature to manage that issue. As a result of that, we went to the New Hampshire legislature and very quickly, we had a unanimous vote in the Senate Judiciary Committee, and it was approved by the Senate in the consent calendar. The same thing happened in the House, and Gov. Sununu signed that bill last Friday. So we plugged that last hole in the set of changes. Myself and the ACLU of New Hampshire and judged King and Kelly, all those recommendations we came up with, we plugged the last hole.
So under this new law, what’s going to change, specifically?
So now, whenever a court is considering jailing somebody for an inability to pay a fine, under the court rules, they must hold an inability to pay hearing and give that person notice that that’s what the hearing is about. And two, under the statute that the legislature passed, a person must be – if they can’t afford a lawyer – they must be appointed a lawyer to represent them at that hearing. And a third piece that we passed through the legislature a year ago, if it’s found they are willfully unwilling to pay their fine, then they can be committed to jail and serve it off at a specific rate. It used to be that rate was $50 a day; we had the law changed to $150 a day.
And that’s in a situation where it’s determined someone had the ability to pay but just refused?
Exactly. Most simply, this doesn’t prevent people from going to jail who are willfully failing to pay. That’s still on the table. But it makes it more certain that the courts are discriminating between those who can afford to pay the fines and those who can’t afford to pay the fines. That’s what was not happening before; now we have procedures in place that it will happen.
And they have to be represented.