Judge on ACLU ‘debtor’s prison’ report: NH has no ‘systemic problem’ jailing the poor

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Judge Edwin Kelly
Judge Edwin Kelly

CONCORD, NH – Edwin W. Kelly, administrative judge of the New Hampshire Circuit Courts, disagrees with ACLU-NH findings that there is a “systemic problem” with people being jailed because they can’t afford to pay court fines.

“I think their numbers show the opposite, that there is not a systemic problem,” Kelly said. “It is such a small number of cases (148) compared to the total number of (83,000) cases” that were adjudicated in circuit courts in 2013.

However ACLU-NH Legal Director Gilles Bissonnette said Kelly and a press release issued by the state Supreme Court are incorrectly interpreting the numbers.


→Related story: ACLU-NH Investigation: ‘Debtors’ Prisons’ Alive and Well in New Hampshire


“The real issue is how indigent defendants are treated by the courts when they are unable to pay fines and are ultimately jailed – a small subset of this 83,000 figure,” Bissonnette said.

In those cases, the report demonstrates that indigent defendants are commonly jailed without counsel and without a meaningful ability-to-pay hearing, Bissonnette said.
“This practice is systemic. In fact, out of the 39 cases we sampled, nine judges engaged in these practices throughout the state.”

The ACLU-NH report estimated 148 people were jailed in 2013 for nonpayment of court fines, but Kelly said that is a very small number compared to the 83,000 cases that were heard in circuit courts that year.

Kelly said he will meet with Bissonnette and board chairman Albert E. Scherr on Friday to discuss the report.

“I agree 100 percent with the premise of their report, which is nobody should go to jail for nonpayment of a fine where the reason for nonpayment is an inability to pay,” Kelly said.

“What I disagree with is their conclusion that there is a systemic problem in New Hampshire with the way the courts are dealing with nonpayment of fine issues.”

What the ACLU-NH report doesn’t do, Kelly said, is put the number of cases in context.
Kelly said he will also offer Bissonnette and Scherr, who is a law professor at the University of New Hampshire School of Law, the opportunity to hold a training sessions for judges on the issue.

“We are not on opposite sides of this,” Kelly said.

The report estimated it cost taxpayers about $166,870 in 2013 to address an estimated $75,850 in unpaid fines that were never collected.

To jail someone for nonpayment, a judge has to find that the person willfully refused to pay the fine, Kelly said. A person facing jail also needs to be offered a lawyer and a hearing.

As to whether the people in the cases mentioned in the report should have been jailed, Kelly said he wasn’t aware of the facts in each case.

“I really can’t second-guess the judges in those cases,” Kelly said. Scherr said Supreme Court precedent and New Hampshire law make clear that local courts and jails should not function as debtors’ prisons.

“Yet circuit courts in New Hampshire routinely jail people without making any attempt whatsoever to determine whether they can afford to pay their fines,” Scherr said in a news release issued by ACLU-NH.

The New Hampshire Judicial Branch issued a news release today discussing the state Supreme Court’s response to the ACLU-NH report. (see below).

“Given the speedy appellate process for review of circuit court decisions in such cases, we are confident that Judge Kelly, working with the report’s authors, will reach agreement on what, if any, changes to our rules, procedures or statutes should be recommended to the Supreme Court,” the release stated.

New Hampshire Judicial Branch news release responding to ACLU-NH investigation:

CONCORD, NH – New Supreme Court Chief Justice Linda Stewart Dalianis issued the following statement today regarding the report issued by the ACLU of New Hampshire entitled, “Debtors’ Prisons in New Hampshire”:
“The Supreme Court has reviewed the report issued by the ACLU of New Hampshire (ACLUNH) and has discussed it with Edwin W. Kelly, Administrative Judge of the Circuit Court. Judge Kelly will be meeting with the authors of the report on September 25 to review current court rules and procedures as well as state statutes. Consideration will be given to whether changes are called for to insure that the required constitutional safeguards govern the process used by courts in reviewing cases of individuals who have failed to pay court-imposed fines.
We are mindful that in 2013, the year reviewed by the ACLUNH, the New Hampshire circuit court handled 83,000 criminal/fine-based matters. The report found, by extrapolation, that 148 cases involved defendants who were incarcerated for nonpayment of fines without a proper hearing. Given the speedy appellate process for review of circuit court decisions in such cases, we are confident that Judge Kelly, working with the report’s authors, will reach agreement on what, if any, changes to our rules, procedures or statutes should be recommended to the Supreme Court.”


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About Carol Robidoux 5449 Articles
Journalist and editor of ManchesterInkLink.com, a hyperlocal news and information site for Manchester, NH.
  • unhappygrammy

    Not only are people jailed because they can’t afford to pay a fine, but when the Judge states if you can’t afford a Lawyer, you will be afforded one by the State. What they don’t tell you is that you still have to pay for the Court appointed Lawyer. Whether you can afford it or not.