Cancer Treatment

Every couple of days I would pass Mark in the hallway of the Hancock Building where we both lived at the New Hampshire State Prison. He was a quiet, nervous appearing, 54-year-old man with a salt-and-pepper mustache. I sometimes stood next to him in the noon medication line. His hands shook as he took his anti-depressant. Just a year prior Mark was on his way out of prison. After doing 5 1/2 years, he got approved for reduced custody and transferred to the Minimum Security Unit in preparation for parole. He never made it to the streets.  Now he was back behind the walls for what would probably be the rest of his life. No, he didn't commit a new crime while in MSU. Nevertheless, he picked up new charges and got a new 20 to 40 year bid. Here's how it happened.

Mark's story is that of a troubled man. In 1989, while living in Strafford County, Mark began to molest his stepdaughter. The assaults continued off and on for eight years. Finally, she told someone about them. By that time the family had moved to Salem, NH. The whole sordid history came out. Mark was prosecuted for his crimes. The State of New Hampshire offered him a deal: 5 to 10 years in the state prison and mandatory participation in the prison's sexual offender program in exchange for a guilty plea. Mark agreed. For some unknown reason, when the Salem police investigated the case, they did not notify the authorities in Strafford County about the earlier assaults.

Mark went to prison and did his time. He successfully completed the sexual offender program. He did a lot of soul-searching and came to terms, I believe, with his offending behavior. The therapists were satisfied that he was unlikely to re-offend. After 5 ½ years of prison, he had paid the agreed upon penalty for his crimes. But, although he was repentant and, in the opinion of the Adult Parole Board, not a risk to society, he was unforgiven.

Five and a half years in prison can seem like an eternity. Five and a half years on the outside can pass like a flash. When Mark's ex-wife heard of his impending release, she was furious. She thought he was going to do the full ten years. In her opinion, Mark hadn't suffered nearly enough for the damage he had inflicted on her daughter. Just weeks before his scheduled release, she went to the local police to ask about those uncharged assaults in Strafford County.

County lines are imaginary boundaries drawn on the map of the state. But, they define the jurisdiction of the state's Superior Courts. Crimes committed within a county are prosecuted in that county's Superior Court. At the time of his plea bargain, Mark had admitted guilt for all the assaults against his stepdaughter, but he had only been prosecuted in one county. The State now decided that he should be prosecuted for those previously uncharged crimes committed while he lived in Strafford County. It didn't matter that Mark had admitted to these offenses six years previously and had completed sex offender therapy. It didn't matter that the new charges were for offenses committed prior to those for which Mark had already served time. It certainly didn't matter that, after 5 ½ years in prison, he had no money left to hire a lawyer to defend him. The State of New Hampshire indicted him again for sexual assault.

Mark was given the services of a public defender who advised him to plead guilty again. After all, he had admitted the whole history of his offending at the time of his initial arrest and again while in the sexual offender program. He didn't have a legal leg to stand on. And, the state was threatening him with multiple consecutive sentences adding up to life in prison if he went to trial. Mark pled guilty yet again, this time in exchange for a 20 to 40 year sentence with credit given for the 5 1/2 years he had already served. For some reason, the judge also ordered Mark to reenlist in the sexual offender program that he had already successfully completed.

Perhaps Mark's crimes, taken as a whole, merit a 20 to 40 year sentence. Who can say? Certain aspects of this novel exercise in criminal justice disturbed me. I decided to consult with a friend who had the reputation of being a jailhouse lawyer.

"If Mark had been a drug dealer working in several counties, could the state have recharged him after all these years?" I asked.

"No," he told me. "The Statute of Limitations would prevent it. But in the case of sexual assault, the time limit's been expanded to 22 years after the victim's 18th birthday. No help for him there."

"Aren't you guaranteed the right to a speedy trial?" I continued. "I mean, six years passed between the time investigators in Salem learned of the incidents and when Mark was charged."

My friend shook his head. "His public defender tried to argue that in court. The judge said that people don't have the right to a speedy trial until after they are arrested on a specific charge."

"Well," I tried again, "when Mark took the initial plea bargain, he would have had to waive his right to have the state prove, beyond reasonable doubt, all the charges against him, right? My friend nodded. "Since he's being asked to give up his rights to due process," I continued, "doesn't the state have to put all its cards on the table? Is it legal for them to hold back indictments and then decide later that the guy hasn't suffered enough?" 

My convict counsel shook his head. "I know it sounds crazy, but when the crime is a sex assault, it looks like the state can do whatever it wants. It can dribble out charges until the victim's desire for vengeance is satisfied, or the offender is dead. You got to remember what the average citizen's opinion of this guy is. They don't care if his rights get trampled. They just want him off the streets."

I had to agree. Mark is considered, in the words of one newspaper editorial about him, "a cancer on the organs of society." And cancers have no due process rights.