- Associated Press - Wednesday, September 23, 2015

CONCORD, N.H. (AP) - A yearlong analysis showed that scores of defendants who owe fines for minor offenses are jailed in lieu of payment when they can’t afford to pay, according to the American Civil Liberties Union in New Hampshire.

In a report released Wednesday, ACLU lawyers said the practice violates the constitution when judges do not appoint lawyers for the defendants or don’t consider their ability to pay before jailing them.

Attorney Albert “Buzz” Scherr, of the University of New Hampshire Law School and one of the study’s leaders, said it’s also “stupid economics.” The analysis showed that taxpayers in 2013 spent nearly $167,000 to jail debtors who owed fines totaling less than half that.

Data collected by the ACLU shows 289 defendants who owed fines were jailed in nine of the state’s 10 counties in 2013. Merrimack County didn’t provide data.

“It’s not a rogue judge problem,” Scherr said.

Circuit Court Administrative Judge Edwin W. Kelly applauded the ALCU’s analysis and agreed that people should be able to try to show a judge they don’t have the ability to pay a fine before going to jail. He also supported having a lawyer present and noted that in two of three cases highlighted in the report, the defendants had lawyers.

Kelly said New Hampshire circuit court judges handled 83,000 cases involving fines in 2013 - including many where fines were mandatory - while the ACLU report focused on just 39. “I don’t agree with the report that it’s a systemic problem,” he said.

Supreme Court Chief Justice Linda Dalianis said Wednesday that Kelly will meet Friday with Scherr and NHCLU legal director Gilles Bissonnette to discuss the report.

Of the 289 cases from 2013, the civil liberties union randomly selected 39 to study. In 33 percent of those cases, the defendant was jailed without being appointed a lawyer. In 18 percent, the defendant had no lawyer and agreed to go to jail. In 25 percent, the defendant had a lawyer and agreed to jail time.

Scherr, president of the board of the state ACLU, and Bissonnette stressed they have no problem if a defendant has a lawyer and still opts for jail.

Alejandra Corro, a 22-year-old single mother of two, was jailed in March 2014 - a month and a half after fire destroyed her apartment - because she didn’t complete community service in lieu of a fine for stealing children’s clothing. She had done 20 hours but still owed 42 hours - which a circuit court judge said was worth $420 - and ordered her to jail for nine days.

“I’m not sentencing her. She sentenced herself,” the judge said, according to court transcripts.

Bissonnette got Corro and two others out of jail in 2014 by petitioning higher courts.

In another case, Bryan Sullivan was in Manchester Circuit Court for a plea hearing on a criminal trespass charge. In less than two minutes, a circuit court judge dismissed Sullivan’s concern about going to jail due to poor health and sent him to jail to pay off a $100 fine.

“Not a hint of ability to pay. Not a hint of counsel,” Scherr said. “The judge blows past his medical conditions. It’s very efficient constitutional injustice.”

The civil liberties union is proposing the Judicial Branch change its rules to ensure judges hold ability-to-pay hearings and appoint a lawyer if people who can’t pay fines are threatened with jail time. They also want judges to examine a defendant’s ability to pay a fine at the time of sentencing and not impose fines on those too poor to pay them.

Kelly had asked for a meeting with the ACLU lawyers to discuss the issue.

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