Update on NH Legislation

Here is a summary of  where key NH crime bills stand as of Feb. 20. We still need your help on several of them.

HB 1330 to add a former prisoner to the interbranch criminal and juvenile justice council. Our bill would appoint an ex-offender to a high level board that studies crime policy. A woman former inmate did great work on a similar, now defunct, panel for women’s prisons. Only someone who has lived in a cell knows what that is like. We drummed up a good turnout for the hearing, but the bill stood little chance in a House committee packed with former cops and jailers. The vote against it was 12-3, with a House vote set for Mar. 9. At least the bill might get a full debate. It was not placed on the consent calendar. Realistically, it’s dead, but we'll try again next year.

HB 1153 prohibiting a political subdivision from adopting residency restrictions on sex offenders. The bill bans town ordinances that keep registered sex offenders from living near schools, parks and daycare. Child and victim advocates and the State Police oppose these exile codes, which make registrants jobless and homeless. We had a strong turnout for the hearing Feb. 17, and expect another favorable committee vote. Last year several Republican leaders got the same bill tabled in a House floor fight, but there should be a vote on the merits this time, and we think it will go our way. The House vote in favor of it has been lopsided three other times. But it will probably die again in the Senate.

HB 1113 requiring a performance audit of the sex offender treatment program. Our bill asks the Legislative Budget Assistant to study the backlog in the sex offender treatment program. This legislation forced the state to hire three more counselors this fall and cut the program from 18 months to six.  The bill drew strong support at its committee hearing Mar. 12, and we are hopeful. The Department of Corrections supported it, which was huge, and we are grateful.

HB 1343 prohibiting the retroactive application of the sex offender registry.  The Supreme Court has found the Internet shaming roster to be a retroactive punishment. Now 800 or more lifetime registrants have a chance to get off if they can pay a lawyer and experts. Our bill frees them from laws that increase their punishment after the fact. HB 1343 will likely die in the House, as we expected. We are hoping its presence kills or at least favorably alters three hostile  bills meant to keep anyone from ever getting off the public registry.

HB 1216 requiring public bodies and agencies to provide information which is not regularly kept or reported, upon payment by the requestor. Our bill closes a loophole in the Right to Know Law and forces Corrections to give Citizens for Criminal Justice Reform data it seeks on the backlog in the sex offender program. The bill drew strong emotional support in the House Judiciary Committee, but we expect a one-sided vote there to kill it. Lawmakers thought the problem it addresses is terrible, the backlog in the sex offender treatment program. But they disliked our solution of changing the right to know law. The Department of Corrections gave no testimony at its hearing, which surprised us. Come to find out they support a performance audit of the program. That means the audit will show they have gotten rid of the backlog. If so, that’s a very good outcome.

HB 1369 requiring judges to grant earned time credits when a prisoner has substantially reduced the threat he or she poses to the public.  CCJR worked with the Inmate Communications Committee for years to pass a landmark sentence reduction law a few judges are ignoring. This bill gives people the time off they’ve earned. I understand the Department of Corrections wants to work with us on an amendment to the bill that would give it a better chance of passage. The hearing went well, and we have a little time to help write the proposed change.

HB 1532 permitting state or county prisoners to vote by absentee ballot. Our bill to let New Hampshire prisoners, like those in Vermont and Maine, vote by absentee ballot in the town where they lived when they were arrested. Candidates for governor and president might have to visit some prisons for a change. We had a good turnout for this one, but lawmakers seemed pretty negative. It’s probably going nowhere.

HB 1311 limiting solitary confinement. Our bill would limit and study the use of punitive segregation and solitary confinement in prison. Every inmate knows somebody who left solitary worse than they went in. This and two other bills to study solitary confinement are going nowhere, We had good turnouts, but the votes against them were 11-0, 11-0 and 9-2. The House floor votes Mar. 9 are a forgone conclusion. We’ll try again next year.

SB 338 to let crime victims make confidential statements to the parole board.  The bill authorizes the Parole Board to take secret victim testimony against a prisoner. That’s been going on for decades, but it violates the fundamental right of inmates to know all the evidence for and against them. The hearing is at 9 a.m. Mar. 1, and we hope the prime sponsor withdraws the bill. You have the reasons why we want that result from a legislative alert that went out Feb. 20 to our supporters. We hope folks show up in force for the hearing in Room 100 of the State House.

HB 1390 to let towns restrict where registered sex offenders can live. The original bill would evict sex offenders from their own homes if they live too near places where kids gather. Few registrants would make parole in the first place. It would be impossible to find allowable housing. The bill also let a victim speak at a registrant’s court hearing to get off the public shaming list. We spoke against the bill, as did the ACLU and defense lawyers. The House local government committee voted against it 15-0.

HB 1318  to make it impossible for sex offenders to escape the public registry. We had a good turnout against the bill at the Criminal Justice Committee hearing on Mar. 17. Lobbyists from the  Attorney General’s Office and Department of Safety offered a long amendment hoping to save the bill. We think we can kill this one, but only because a very similar SB 468 has strong support.

SB 468 to make the sex offender registry a lifetime punishment. The bill would make it impossible for registered sex offenders to escape the Internet shaming list. They would have to pay lawyers and experts to prove they are no longer dangerous by an unreachable standard, clear and convincing evidence. Many are unemployed now and homeless because the targeting roster ruins their families and careers. Several registrants spoke against the bill at the Senate hearing Jan. 26, joining us, the Civil Liberties Union and the Defense lawyers. We fear that some version of the bill will become law and force us to raise money to pay the expert witnesses for a lawsuit much broader than the recent John Doe case. This is the most dangerous bill in 2016.  It left committee 4-0 ought to pass. The Senate floor vote is  March 3.  Below is our written testimony in opposition.

Please kill SB 468-FN, relative to changes to the sex offender registry.
By Chris Dornin, board member, Citizens for Criminal Justice Reform

Citizens for Criminal Justice Reform, a New Hampshire non-profit citizens’ action group advocating for smarter crime laws, strongly recommends the Senate Judiciary Committee find SB 468 inexpedient to legislate. On its face the law is unconstitutional.  Its enactment will further violate the civil rights of registered citizens and will result in more costly litigation for the state. Last year, in Doe v. New Hampshire (http://www.courts.state.nh.us/ supreme/opinions/2015/2015012doe.pdf ), the New Hampshire Supreme Court found the state's Registry of Criminal Offenders to be an ex post facto violation as applied to the plaintiff in that case, and by implication, to many other registrants. The court noted the state's registry has evolved over the past two decades, becoming ever more intrusive and onerous. The court declined to say at which point the registry actually became punitive to the point of violating Doe’s constitutional rights.

This proposed law assumes the only ex post facto violation created by New Hampshire’s Registry of Criminal Offenders is the retroactive application of the 1994 law establishing a registry.  But, from the Doe decision, it is just as likely that the 2002 establishment of an Internet registry, or the numerous new requirements laid upon registrants by the 2008 Child Predator Act would also fail an ex post facto test when applied to those registrants whose crimes pre-dated their enactment. This law will not put the issue raised by the Doe case to rest. Far from it, this law will only throw fuel on the fire.

In Doe, the Court found that a lifetime registration requirement was excessive if the registrant no longer poses a meaningful risk to the public. In such cases, lifetime registration becomes wholly punitive. Although pop-culture likes to depict sex offenders as incurables, the actual risk of a registered individual reoffending is low. After 15 years of offense-free life, a registrant's risk of committing another sexual offense falls to near that of the average adult male in America. Simply stated, a majority of those on the registry pose no threat to the public and will never reoffend. The imposition of lifetime registration requirements upon these individuals only serves to further punish them for past offenses for which they have already served their time.

Furthermore, the proposed law imposes absurd requirements on those few Tier III offenders whom it allows to petition for removal from lifetime registration, requirements which will certainly fail constitutional muster. The financial burden to hire an attorney, to hire a psychologist, to possibly pay for a treatment program is laid upon the very persons whose civil rights are being violated.  Clearly, under this scheme, only a few wealthy registrants will ever be able to afford to avoid lifetime registration. The poor will have to register for life whether it benefits the public or not. Restoration of civil rights cannot not be made dependent upon ability to pay.

Finally, the provision that victim impact statements are to be considered by the court when deciding whether to exempt a former offender from lifetime registration, only serves to prove that the purpose of the registry is unconstitutionally punitive. What possible bearing can the recounting of decades-old offenses have on a judge's decision whether or not a registrant is rehabilitated? Insertion of such emotional testimony into what should be a dispassionate, evidence-driven process, can only be seen as inviting judges to consider whether the offender has been punished enough for his past acts.

There is a bill introduced this session, HB 1343, which corrects ex post facto violations associated with the Registry of Criminal Offenders. CCJR supports its passage.

HB1426 to let prisoners earn up to 21 months off their sentences by participating in rehabilitative or educational programming.  Our bill has strong support and powerful sponsors, who worked closely with the Inmate Communications Committee to craft the language.  We testified in favor of it Feb. 12 and hope it will become law.

HB1552 extending the penalty of death to acts of terrorism and civil rights offenses.  We missed the Feb. 19 hearing on this terrible bill, but it only has one sponsor. Unfortunately, that is Rep. Jack Flanagan, the House majority leader.  We think it is going nowhere, because death penalty repeal bills have enjoyed recent strong support in the House.  If I am wrong about this one, we'll show up for the Senate hearing.

HB 1603  requiring the registration of drug dealers.  We were worried at the Feb. 18 public hearing after three Dartmouth kids gave a well crafted power point talk in favor of the bill. Then a dozen people opposed that idea, including the Department of Safety. So did we, warning that half a dozen other kinds of criminals would soon get registered, and those lists would become open to public viewing like the sex offender registry.  Lawmakers seemed hostile to the bill. Its prime sponsor asked them to study it this summer, which they may do. That would be a polite way of killing it.

HB1628 relative to human trafficking involving persons under 18 years of age. We spoke against this bill because it imposes 3.5 to 7 years of prison time on the customer of a prostitute age 16 or 17 who lies about their age. One of the bill’s many supporters, a county attorney, said four prostitutes arrested two years ago had hundreds of customers who might have been convicted under this legislation. We oppose wide efforts to fill our prisons without questioning the severity of the punishments. Yes, it is wrong to be a John. The current misdemeanor punishment is probably enough. The really bad guys are the few pimps. A bill like this might encourage them to murder a young prostitute cooperating with the authorities.

HB1541 prohibiting placement of certain persons with a mental illness in the secure psychiatric unit, and authorizing the commissioner of the department of corrections to seek therapeutic alternatives.  One of our CCJR board members worked closely with the sponsor and testified for the bill, which has decent chance of becoming law. That would be a huge improvement. Below is a letter to the Concord Monitor on the issue by another CCJR board member, Jeremy Olson 

Letter: Prison as treatment
For the Monitor  Tuesday, January 12, 2016

Recent news articles have exposed the dubious practice of housing civilly committed patients at the Secure Psychiatric Unit in the men’s prison in Concord. The state improperly uses that site as an extension of New Hampshire Hospital. Non-criminals live with felons. We have created two classes of civilly committed individuals, those who receive good care in a hospital and those who exist in de facto incarceration. The state has a moral obligation to give all its vulnerable citizens equal and proper treatment.

New Hampshire Hospital is eligible for federal funding as an accredited behavioral health care facility. It has an expert multidisciplinary staff and a therapeutic environment under the umbrella of Health and Human Services. The Secure Psychiatric Unit, in contrast, has little expertise in behavioral health management. Correctional officers run it with a paramilitary culture of security and punishment. It is the most restrictive possible venue, and it receives no federal reimbursement.

Using the prison for non-adjudicated people with mental illness shows that the behavioral health system is so fiscally starved that compassion and civil rights are unimportant. The behavioral health needs of New Hampshire have increased dramatically in recent years. The Legislature must fund a suitable forensic behavioral health care facility under Health and Human Services. That’s the best practice everywhere else.

We must never forget the snake pits of the former Laconia State School and, most recently, the Lakeview Rehab Center in Effingham. Prison is an unacceptable option for those who have committed no crimes and are severely mentally ill.  JEREMY J. OLSON

HB1690 extending the New Hampshire health protection program.  We gave written testimony on Feb. 17 for this hugely important bill. An army of human service agencies and advocates for the poor are fighting for it. Opponents, most of them Republican, are trying in a non-budget legislative year to force supporters to raise the state match of less than $50,000 to bring in half a million dollars in federal aid. We think the bill will become law, in no small part because it helps an estimated 15,000 former offenders to keep the only health insurance they can get.

SB 463-FN to suspend the imposition of the death penalty. The bill came out of the Senate Judiciary Committee with a vote of 3-1, Ought to Pass. We submitted testimony for the bill, which goes to the Senate floor on Thursday, March 3. The legislation is hugely important, and we understand the current tally would be 12-12. A tie would kill the bill. Please ask your senator to pass it. The link to contact that lawmaker is at  http://www.gencourt.state.nh.us/Senate/members/senate_roster.aspx.

Please contact Chris Dornin, founder, CCJR, cldornin@aol.com (603) 228-9610, for additonal information, or to volunteer to attend or testify at furture hearings.