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ACLU Exposes Debtors’ Prisons Across New Hampshire

by Joe Watson

In a September 2015 report, the ACLU of New Hampshire revealed that judges across the state were jailing impoverished defendants due to their inability to pay fines, a practice the ACLU-NH called “unconstitutional, financially unsound and cruel.”

A year-long investigation revealed that nine judges in ten circuit courts across New Hampshire were sending people to jail essentially for being poor, without appointing them counsel or a meaningful hearing to determine their ability to pay.

“The practice of jailing individuals who are too poor to pay a fine needlessly places an extra financial burden on counties by requiring them to house poor individuals who are no danger to society,” the ACLU-NH said in the report. “Beyond its illegality and cost, this practice creates additional hardships for men and women in New Hampshire who are already homeless, unemployed, or just too poor to pay.”

After receiving reports of quasi-debtors’ prisons across the state, the ACLU-NH spent the next year poring over records and court documents in each of New Hampshire’s ten counties. The organization determined, based on those records, that there were at least 289 cases in 2013 in which defendants were jailed in lieu of a fine or for failing to pay a fine.

Then, due to the difficulty of obtaining transcripts for all 289 cases, as well as prohibitive costs, the ACLU-NH randomly chose 39 of those cases for closer analysis. After extrapolating the data, it estimated that 148 cases – roughly 51% of the applicable cases – had resulted in defendants being jailed because they were unable to pay.

Further, none of the defendants were offered or granted legal representation – a clear violation of their constitutional rights, the ACLU-NH noted.

“In criminal cases, when a person is confronted with judicial action that immediately threatens his or her liberty, the person is entitled to counsel under the due process clauses of the Fifth and Fourteenth Amendments,” and in accordance with state law, according to the report.

“Accordingly,” it continued, “at a hearing in a criminal case where the court threatens an individual with jail for not paying a fine or fee – including where an individual is given the choice of paying or going to jail, or where an individual cannot leave the courthouse until he or she pays – the judge must ask the individual whether he or she wants counsel and, if indigent, appoint one. This must all occur before the judge takes up the matter of the unpaid obligation and the individual’s ability to pay.”

Besides what the ACLU-NH said were counter-productive “human costs” of New Hampshire’s debtors’ prisons, there also were significant costs to counties and taxpayers. State law mandates that every night spent in jail reduces a prisoner’s debt by $50 – money that “neither the courts nor the jails will ever see.”

Also, according to Dartmouth College’s Nelson A. Rockefeller Center, jails in New Hampshire spend about $110 per day to incarcerate each prisoner. Based on that data, the ACLU-NH’s analysis determined debtors’ prisons cost county taxpayers around $166,870 in 2013 – more than double the estimated $75,850 in fines that defendants were jailed for not paying.

The report profiled cases in which two superior courts and the state’s Supreme Court granted relief to three indigent defendants, Alejandra Corro, Richard Vaughan and Dennis Suprenant, who were jailed or at risk of being jailed because they couldn’t afford to pay court fines.

In August 2016, a judicial committee voted to change state court rules to ensure that all defendants facing incarceration have a right to legal representation; further, courts should only impose jail terms for debtors in extreme cases.

“Are there alternatives to sending this person to jail that might work?” asked University of New Hampshire law professor Buzz Scherr, who authored the ACLU-NH report. “Could they suspend a portion or all of the fine? Could they do community service?”

The New Hampshire Supreme Court, however, rejected most of the rule changes in an October 17, 2016 order. The justices wrote that defendants do not have a right to an attorney in cases involving civil contempt – which includes failure to pay fines – even if they face a jail term. Additionally, the Court held that the ability of defendants to access lines of credit can be considered when determining whether they have an “ability to pay.” See: New Hampshire Supreme Court, Order No. R-2016-003.

Therefore, the solution to the problem of debtors’ prisons in New Hampshire rests with the legislature, since the state’s highest court has declined to resolve the issue and protect the rights of poor defendants.

Sources: “Debtors’ Prisons in New Hampshire,” American Civil Liberties Union of New Hampshire (September 2015);;