Justices weigh whether inmate with consecutive terms should have been eligible for release years ago

Gregg Blackstock was sent to prison 15 years ago for sexual assault and is serving the final months of a third consecutive minimum sentence in Concord. According to the state Department of Corrections, he will become eligible for parole in October.

According to Blackstock, that will be about five years too late.

In a case argued Thursday before the New Hampshire Supreme Court, Blackstock has invoked a seemingly obscure and now-repealed state law that he and public defenders claim should have made him eligible for release back in 2011, after serving the second of three consecutive minimum terms.

The court’s decision could affect numerous inmates whose sentences resemble Blackstock’s and who, like him, were convicted before the law was done away with in 2008.

Public defenders say the statute, RSA 651-A:6 II, allowed inmates serving consecutive sentences to become eligible for parole after completing the two longest minimum terms. In other words, someone sentenced to four consecutive 10- to 15-year terms would be eligible for parole after 20 years.

The Department of Corrections has not followed that interpretation for at least 25 years. Instead, the state Parole Board has paroled inmates with consecutive terms from their first sentence to the second, and then to their third or fourth, until the person is released.

Legislators repealed the law seven years ago after a jailhouse lawyer, Phil Horner, brought the same argument to the Supreme Court. But he dropped the case after being paroled, and it has gone unaddressed since. Today, prisoners sentenced to consecutive terms must serve them all before becoming eligible for parole.

Blackstock argues that because he was sentenced before the repeal, he should at least be eligible for parole now, at age 60. The public defender’s office, who the court asked to weigh in, says the same should be true for similar prisoners.

“Does that mean the consecutively sentenced inmate would be paroled at that time? No,” Stephanie Hausman, an appellate defender, said Thursday. “It doesn’t make ineffective the third, fourth or fifth consecutive sentences. It just gives an opportunity for release at the end of the two longest minimums.”

The attorney general’s office counters that Hausman’s reading could still result in “de facto pardons” for many inmates.

Exactly how many inmates is unclear. The Department of Corrections was unable to calculate Thursday the number of current inmates who were sentenced to consecutive terms before 2008, but spokesman Jeff Lyons said 322 of all 2,893 inmates are currently serving consecutive sentences.

Assistant Attorney General Elizabeth Lahey told the justices that there are at least three cases now on hold pending their decision in Blackstock’s appeal.

Lahey argued that the statute is obsolete for a number of reasons, not the least of which is the state’s truth in sentencing law, which has for more than three decades mandated that inmates serve the entirety of their minimum sentences before becoming eligible for parole.

Justice Carol Ann Conboy wondered aloud if that negates the debate altogether.

“Our hypotheticals suggest that this is all very complicated,” she said, “but it may not be.”

But Justice Robert Lynn said that couldn’t be the case, because the statute in question was amended after truth in sentencing was enacted in 1982.

So I don’t think you can just say the Legislature didn’t intend to accomplish something,” he said.

Decades ago, inmates were eligible for parole after serving two-thirds of their aggregated minimum. In 1975, according to Hausman, lawmakers limited consecutive sentences by letting inmates with consecutive terms be considered for parole after serving the longest one. They increased that to two in 1991.

Hausman argued that truth in sentencing was “never intended to be an absolute,” because even after it passed there were mechanisms for inmates to reduce the sentence imposed by their trial judges.

But as Justice Gary Hicks noted, releasing someone after the first two terms could go against their judge’s intent.

“That would certainly come to a surprise to the sentencing judge, wouldn’t it?” Hicks said.

“Exactly,” Lahey replied.

(Jeremy Blackman can be reached at 369-3319,  jblackman@cmonitor.com or on Twitter @JBlackmanCM.)

SOURCE: http://www.concordmonitor.com/home/20419083-95/justices-weigh-whether-inmate-with-consecutive-terms-should-have-been-eligible-for-release-years#.VpD-2XC3Y80.email