‘Debtors’ prison’ rule proposal to be aired


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On one side are these unlikely allies: the American Civil Liberties Union and the NH Circuit Court, along with a law school professor and the NH Judicial Council. On the other side is NH Supreme Court Justice Robert Lynn.

At issue is whether defendants who face incarceration over unpaid fines should have a right to counsel during a hearing on whether they have willfully refused to pay said fine. The two sides also disagree over who should have the burden – the state or the defendant – to prove or disprove the defendants’ ability to pay the fine.

A study by the ACLU of NH and professor Buzz Sherr of UNH Law found that indigent people who couldn’t pay fines were being incarcerated in roughly 150 cases per year in New Hampshire, in what amounted to a modern-day debtors’ prison.

Soon after the study was published, the authors began working with Circuit Court Chief Administrative Judge Edwin Kelly and Deputy Chief Administrative Judge David King to formulate new court rules that would no longer see judges sending indigent people to jail to pay off fines, at a rate of $50 per day.

Kelly recently pointed out that of the $14 million in fines the NH Circuit Court imposed in roughly 81,000 cases last year, about $12 million was collected.

Lynn, who chairs the NH Supreme Court Advisory Committee on Rules, wrote a counter proposal after the group submitted the amended rules to the committee.

He thinks adding a new right to counsel for indigent defendants who risk incarceration for nonpayment of fines creates a slippery slope that could lead to challenges in other areas of civil litigation.

“Candidly, I don’t buy the argument,” Lynn said at rules committee meeting held March 11. “There really is no difference between what you’re talking about and a child support case.”

Other members of the rules committee argued that the issue was clearly one related strictly to criminal contempt, because the fines arise from criminal cases.

Sen. Dan Feltes, D-Concord, an attorney and member of the rules committee, said he was exploring whether this should be a legislative issue instead of a court-rules issue.

The rules committee has scheduled a public hearing on both proposals on at 12:30 p.m. Friday, June 3, at the NH Supreme Court. – KRISTEN SENZ/NH BAR NEWS

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