Why New Hampshire Needs a Consecutive Sentencing Law

Ask a New Hampshire prosecutor to show you the law giving judges the power to impose prison sentences consecutively. He’ll tell you there is none. Ask him to show you the guidelines judges are to use when deciding whether to run sentences concurrently or consecutively. He’ll tell you, there are none. Ask him to show you the law telling the parole board how to handle parole when someone has back-to-back sentences. He’ll tell you, there is none. Ask him if this is a problem. He’ll probably say things are fine the way they are. SB

But sentencing experts say citizens have a right to fair notice of what penalties the State can impose on them for breaking the law, including how multiple sentences can be imposed and how they will be administered. In 1979, the U.S. Supreme Court weighed in on the issue. “[i]t is a fundamental tenet of due process that no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. So too, vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute.”

That Court decision came four years after the New Hampshire Legislature repealed the State’s last general law about consecutive sentencing, replacing it with nothing. New Hampshire law used to say all sentences imposed at the same time had to run concurrently. The repeal of that law left a hole in the statutes. In response to a 2007 prisoner lawsuit, the New Hampshire Supreme Court admitted, “there is no explicit statutory authority for consecutive sentences.” Nevertheless, New Hampshire judges use them all the time, although the New Hampshire Supreme Court had to resort to pre-revolutionary common law to justify the practice.

And there is no mention of consecutive sentences in the parole laws. Forty-eight States combine consecutive sentences into a single prison term to determine when a prisoner is eligible for parole, but not New Hampshire. One can only imagine the head-scratching that happened the first time a prisoner appeared in front of the parole board with a consecutive sentence. That prisoner was “paroled” into another prison term, even though in the law “parole” is defined as “conditional release from prison.” Did the parole board ask the legislature if this was the right way to do it? No. Did the parole board use the administrative rule-making procedure? No. The board made up serial parole out of whole cloth.

Here’s how it works. An offender gets sentenced to two, 5 to 10 year consecutive sentences. You’d think he got 10 to 20. Right? Wrong. After 5 years he gets a parole hearing, if all goes well, he is “paroled” into his next 5 to 10. What happens to the remaining 5 years of his first sentence? They continue running in the background. So, his maximum sentence has now become 15 years. The more consecutive sentences someone has, the more “parole” hearings he gets, the more time gets taken off of his maximum sentence. Consider the offender with a 10 to 20, a consecutive 5 to 10, and a consecutive 3½ to 7. After 18½ years in prison he will have just 3½ years of parole left to serve until his maximum. Is this procedure written down anywhere? No. In a 2007 challenge, a Superior Court judge called New Hampshire’s parole laws “the most confusing I’ve ever seen.”

So why do prosecutors oppose clarifying the State’s consecutive sentencing laws? It’s a power thing. The proposed law, in addition to correcting fair notice problems, also limits the number of consecutive sentences a judge can impose at one sitting to twice the longest term for the most serious offense charged – a common limitation in other State’s laws. Prosecutors don’t like this. Right now they have the ability to subdivide most criminal acts into multiple charges. In many cases, the number of indictments is only limited by the creativity of the county attorney. Ask yourself, when was the last time you read about someone who was only charged with one offense? With unlimited consecutive sentences at his disposal, a prosecutor can threaten an effective life sentence to get the accused to plea bargain for a lesser term. This saves the cost and trouble of preparing for a jury trial. In New Hampshire, over 90% of those in prison got their sentence by plea bargaining. The problem is, sometimes the accused is really innocent. The threat of unlimited consecutive sentences increases the likelihood that an innocent person will plead guilty rather than roll the dice with life in prison at stake.

And then there’s the cost. Removing the lid on consecutive sentencing has resulted in skyrocketing prison populations. Fifteen years after the 1975 repeal, New Hampshire’s prison population was growing fourth fastest in the nation at a time when crime rates were not rising. Why? One of the reasons was, those in prison were staying longer. At over $34,000 per year, a consecutive 10 to 20 will cost the state a third of a million dollars more than the same term served concurrently. Yes, folks, it’s time for a consecutive sentencing law in New Hampshire.