Child Protection Act has a high price tag

The state faces at least three huge threats to its budget in the next decade.

Medicaid costs are expected to grow by hundreds of millions of dollars, a matter of relentless demographics and runaway health-care costs.

The ongoing back-and-forth over school funding looms ever present as lawmakers continue to play chicken with the state Supreme Court.

And there’s the burgeoning prison system, already 500 inmates above capacity.

The growing prison population is largely a result of truth-in-sentencing laws and a crackdown on drug and sex offenders. That’s why some lawmakers see the proposed Child Protection Act, House Bill 1692, as more than just a get-tough piece of legislation but as an added burden on an already strained financial structure.

Gov. John Lynch made the bill the centerpiece of his legislative agenda in his State of the State speech, saying “nothing is more important than keeping our children safe.” Lynch’s preferred version of the measure calls for a minimum 25-year sentence for someone who commits a first-time sex offense against someone under the age of 12 – something he pledged in his State of the State speech. “It’s time to send a clear message: if you prey on our children in New Hampshire, we’re going to send you to prison, and we’re going to keep you there for a long time.”

The senate recently voted, 21-3, in support of Lynch’s position.

While there has been widespread support for Lynch’s proposal, not everyone backs it in its toughest form, including the House of Representatives.

Another critic is former Corrections Commissioner Steve Curry, who called HB 1692 “a blind effort” that should “be taken out with a clear head.”

According to Curry, imposing a 25-year minimum sentence “will increase the prison population in a way the state is absolutely unprepared for.”

While Curry said he’s not opposed to the bill, he is concerned that “political momentum could push it farther and faster than we need if we don’t give a lot of thought to the unintended consequences.”

The state’s 600 imprisoned sex offenders cost $16.8 million per year, or $28,000 apiece, to incarcerate. Their average sentence is between 10 and 20 years, according to corrections spokesman Jeff Lyons.

That means the current group will cost taxpayers $255 million over 15 years in today’s dollars.

As originally introduced, the Child Protection Act allowed a prosecutor to seek a mandatory sentence of 25 years to life for a first-time sexual offense against a child 12 or younger. The definition of that crime includes fondling a youngster over his or her clothing, according to members of the House subcommittee that studied the bill. The intent of the touch has to be sexual.

Rep. Susan Almy, D-Lebanon, said it’s hard to decide which of the two people is lying when the only evidence is a child’s testimony. But under current law, the unsupported word of the alleged victim is enough to convict.

The House removed the mandatory 25-year sentence and instead would let a judge impose any sentence, from no jail time to a 25-year minimum. The representatives voted, 307-17, to send that amended version to the Senate after an emotional two-hour debate.

Florida reaction

With Attorney General Kelly Ayotte telling senators the change takes the teeth out of the bill, the governor and leadership in both houses are hoping to restore the 25-year minimum.

Senate President Ted Gatsas, R-Manchester, called the provision a vital tool for prosecutors and urged fellow senators “to put this type of criminal away for a long, long time.”

A gubernatorial task force hammered out the original wording of HB 1692 within six months after the February 2005 death of 9-year-old Jessica Lunsford in Florida. John Couey, a registered sex offender in Georgia, was accused of kidnapping her from her bedroom and killing her. A registered Florida sex offender is accused of raping and murdering 13-year-old Sarah Lunde two months later.

Inflamed by the two lurid cases, Florida legislators passed unanimously what became known as Jessica’s Law last May 2. It mandates 25 years to life for a first time sex offense against a child 11 or younger. Many states are pushing similar laws.

County attorneys, police chiefs and victims’ advocates have testified the New Hampshire bill would give prosecutors the leverage to win easier guilty pleas. Those deals would spare young victims the added trauma of taking the witness stand, they argue. But defense attorneys warn an innocent man might plead guilty to avoid a possible life sentence.

The bill also allows the state to involuntarily commit any person who remains a threat to society after serving his or her sentence.

The House never sent the bill to its Finance Committee because there was no appropriation tied to it. The lower chamber deleted a section imposing a new $15 fee when parolees register twice a year for the sex offender Web site. That was to avoid the delay in getting the measure reviewed by the Ways and Means Committee.

The conviction rate for sex offenders is at least 40 people per year. If HB 1692 doubles that conviction rate, as defense attorneys fear, the population of sex offenders would reach 1,500 by 2017. Their care would cost $43 million that year alone, and the cumulative cost until then would be about $500 million. It could be another $500 million if the bill results in keeping all of those convicted behind bars twice as long as they would under previous laws.

“We can’t afford to pay for domestic violence shelters if we spend all that money on prisons,” said Representative Almy.

Conflicting research

Inmates who max out their sentence under HB 1692 would end up costing far more than $28,000 per year. The state’s average nursing home bill is $50,000 per patient. Multiply that $22,000 difference by the number of inmates who might one day die in the prison infirmary, or more expensively, in the intensive care unit at Concord Hospital

The incomplete fiscal note to HB 1692 made no mention of prison cost increases, but it said the bill would impose a large and undetermined burden on the court system. The potential length of a sentence would qualify the indigent defendant to a lawyer, a second lawyer, a paralegal and expert witnesses.

Most convicted felons would eventually exhaust their appeals in state and federal courts, the note said. The judiciary would feel the same burden in reverse when the inmates are ready to leave. With so much at stake, their involuntary commitment hearings every five years would resemble full trials and lead to more federal and Supreme Court appeals.

Sex offenders’ therapists, victims’ advocates and defense lawyers have told lawmakers that most sex offenders benefit from treatment and their recidivism rate is much lower than for other kinds of inmates.

But Attorney General Kelly Ayotte, who led the task force that wrote the predator bill, told lawmakers a recent Canadian study followed paroled pedophiles for 25 years and found 90 to 95 percent of them sexually abused a child after release.

She made no mention of the dozens of research studies lawmakers received from other sources that disagreed. The Canadian report written in 2004 by Ron Langevin and others looked at 320 inmates from the 1960s and 1970s who had abused many children before going to prison. Those men would have left prison before treatment programs existed, and they did their time when society only sent fixated serial child rapists to prison for sex offenses against kids. The wave of incest convictions began a decade later, increasing the New Hampshire sex offender population from 10 to 600 — a 6,000 percent increase.

Claire Ebel, director of the state chapter of the American Civil Liberties Union, said the Canadian study looked only at incorrigible pedophiles, and that’s not the group in prison now.

“In New Hampshire and Vermont, 97 percent of the offenders know their victims,” she said.

A U.S. Department of Justice study of 4,295 child molesters found that 5.3 percent had abused another child after three years on parole. First-time offenders with one victim before prison had a 2.4 percent recidivism rate. Lawmakers received numerous studies that said treatment programs work, but the recidivism rate can go as high as 30 percent without treatment.

Lance Messenger, a sexual therapist, said the state could safely send most offenders to prison for several years and release them to a program on the outside costing $5,000 per year.

A roller coaster?

Asked at his April 5 press conference about the fiscal impact of HB 1692, Governor Lynch ignored the question. But he said the expense is worthwhile if it stops one person from raping a child.

“There’s a huge cost to those who are molested as a child,” he said.

House Speaker Doug Scamman, R-Stratham, said the rise in the rate of plea bargains might reduce the number of initial trials. And the longer sentences could reduce the number of trials for repeat offenders on parole, since they wouldn’t make parole.

“No doubt if you keep people longer, you’d end up with a few more in prison,” Scamman said. “But there won’t be any immediate impact in this biennium. Most people would just as soon they stay there longer. Maybe those people will get educated enough to say they’re unwilling to get 25 years.”

Rep. David Welch, R-Kingston, chairman of the House Criminal Justice Committee – which made 50 substantive changes to the original bill — said his panel found out most sex offenders already get long sentences because prosecutors stack the terms one after the other. They can separate a single sex act into several felonies with consecutive sentences. Every touch is potentially a new crime.

“One in 30 sex offenders are true predators,” Welch said. “But the public has this perception one is lurking behind the seesaw at every schoolyard.”

Welch said a family with a father in prison may likely be forced onto welfare and Medicaid.

“You have to figure that costs $30,000, and it’s a lowball figure,” Welch said. “We’re on a roller coaster that has just topped off. Now you realize there’s a wall at the bottom. When we started looking at this bill, we realized the problem is one of perception. We’re reacting to what happened in Florida.”

In a press release, Gatsas said, “I despise those predators who assault our children and we need to do everything we can to protect them. That is why the bill should be known as the KEEPING OUR KIDS SAFE ACT.”

But Rep. Lee Hammond, D-Lebanon, said the push for the bill displays a witch-hunt mentality. At the Salem witch trials, 21 witches died on the gallows or under tons of rock. Others confessed to giving their souls to the devil to avoid the death penalty.

“I am embarrassed the governor has chosen to make this such a big splash,” Hammond said. “We won’t be able to build prisons fast enough.”