NH Law About... Debtors' Prisons

Introduction to... Debtors' Prisons

Posted July 29, 2016.

In September, 2015, the New Hampshire branch of the American Civil Liberties Union published a report (linked to below) on jailing debtors in New Hampshire. The ACLU was concerned that this was happening without a meaningful hearing and without the representation of debtors by adequate counsel at hearings. The ACLU argues that this practice has a disproportionate impact on our “most vulnerable citizens,” is discriminatory, and is therefore unconstitutional.  

The ACLU report refers frequently to the rules of New Hampshire's Circuit Court. What are court rules and what authority do they have?  In addition to deciding cases, courts also have the constitutional authority (Art. 73-a) to create court rules. Court rules "have the force and effect of law" and must be included with other legal authorities such as statutes, cases, and regulations when conducting legal research.

The purpose of New Hampshire's court rules is "to provide necessary governance of court procedure and practice and to promote justice by ensuring a fair and expeditious process" (Rule 51. Rule-Making Procedures). The Advisory Committee on Rules, established by the New Hampshire Supreme Court, receives and considers suggestions for changes to the rules governing the state courts. These suggestions are submitted by judges, attorneys, and members of the public. The Committee reviews the suggestions and may propose changes which are then submitted to the New Hampshire Supreme Court.

The Advisory Committee meets four times a year, most recently on June 3, 2016. The June meeting included proposals for amendments to Rule 29(e) [formerly Rule 2.7]. This is the rule that outlines the process to be used for payment of court fines. Background materials to those proposals also included perspectives from the N.H. Judicial Council, the National Coalition for a Civil Right to Counsel, and Governor Hassan. 

Criminal Practice and Procedure,  listed below, contains a good discussion of the New Hampshire and federal constitutional issues relevant to the debtors’ prison issue in sections 33.29[1] and [2].

The “Read About …” section of this guide refers to resources about the law and will provide context and key terms. “Read the Law …” links to selected laws. Please remember that this guide is for information purposes only and is not comprehensive. It is intended as a starting point for research, to illustrate the various sources of the law, and to provide guidance in their use. NH Law About ...  is not a substitute for the services of an attorney.   


Read about... Debtors' Prisons

WEBSITES

Debtors' Prison in New Hampshire: A Report of the American Civil Liberties Union of New Hampshire. September 23, 2015

Link verified on: October 3, 2016

"In a practice startlingly akin to the debtors' prisons of the 19th and early 20th centuries, Circuit Court judges in New Hampshire commonly jail those who have no ability to pay fines without a meaningful hearing and without providing access to counsel. This practice imposed on our most vulnerable citizens is unconstitutional, financially unsound, and cruel."   GO>

N.H. Advisory Committee on Rules, Minutes of Public Meeting of Dec. 4, 2015

Link verified on: July 29, 2016

A lengthy discussion of the Rule 2.7 [now Rule 29(e)] issue begins on page 13.   GO>

# 2015-021. N.H. Advisory Committee on Rules, Committee Material

Link verified on: July 29, 2016

Scroll down the page until you see docket number 2015-021. These are the materials regarding Rule 29(e) [formerly Rule 2.7].   GO>

New Hampshire Judicial Branch Committees-Advisory Committee on Rules,   GO>

Link verified on: July 29, 2016


PRINT

Criminal practice and procedure / by Richard B. McNamara. New Providence, NJ : LexisNexis Matthew Bender, 2010. 5th ed.   GO>

Link verified on: January 30, 2017

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Read the law about... Debtors' Prisons

NEW HAMPSHIRE CONSTITUTION

Part 1. Articles 1 and 2  GO>

Link verified on: July 29, 2016

Part 2. Article 73-a  GO>

Link verified on: July 29, 2016


NEW HAMPSHIRE CASES

138 N.H. 234 (1994). State v. Fowlie

Link verified on: July 29, 2016

"The trial court thus based its decision to impose the sentence on a presumption of ability to pay restitution at the time of the original sentence, rather than on the defendant's actual ability to pay at any time during the existence of the order to pay. This conflicts with the United States Supreme Court's holding in Bearden v. Georgia, 461 U.S. 660 (1983)."   GO>

Find it in a Library ... New Hampshire Reports

Link verified on: February 22, 2017

Find the New Hampshire Reports in libraries throughout the state.   GO>

Learn About New Hampshire Cases: New Hampshire case law consists of the published opinions of the New Hampshire Supreme Court. GO>
 

NEW HAMPSHIRE STATUTES

RSA 618. Fines, Costs and Discharges  GO>

Link verified on: July 29, 2016

Title 51. Courts  GO>

Link verified on: July 29, 2016

Find it in a Library ... New Hampshire Revised Statutes Annotated

Link verified on: February 22, 2017

Find the New Hampshire statutes in print at libraries throughout the state.   GO>

Learn About New Hampshire Statutes: New Hampshire statutes are the laws of the State of New Hampshire as enacted by the New Hampshire General Court. GO>
 

NEW HAMPSHIRE COURT RULES

N.H. Rules of Criminal Procedure. Rule 29. Sentencing Procedures  GO>

Link verified on: July 29, 2016

N.H. Supreme Court Rule 51. Rule-Making Procedures.  GO>

Link verified on: July 29, 2016

Learn About New Hampshire Court Rules: Follow this link to learn how to search court rules online as well as what court rules are and how they're published. GO>
 

NEW HAMPSHIRE FORMS

Circuit Court - District Division. Fine Payment Financial Affidavit,   GO>

Link verified on: July 29, 2016


UNITED STATES CONSTITUTION

5th Amendment (Procedural Due Process)  GO>

Link verified on: July 29, 2016

14th Amendment (Equal Protection Clause)  GO>

Link verified on: July 29, 2016


FEDERAL CASE LAW

399 U.S. 235 (1970). Williams v. Illinois

Link verified on: July 29, 2016

"[T]he Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status."   GO>

401 U.S. 395 (1971). Tate v. Short

Link verified on: July 29, 2016

"[P]etitioner's imprisonment for nonpayment constitutes precisely the same unconstitutional discrimination since, like Williams, petitioner was subjected to imprisonment solely because of his indigency."   GO>

461 U.S. 660 (1983). Bearden v. Georgia

Link verified on: July 29, 2016

"We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment."   GO>


FOR MORE HELP ...

Little Dorrit / by Charles Dickens.   GO>

Link verified on: July 29, 2016

New Hampshire Law Library

Link verified on: February 22, 2017

The state's only public law library. Call, email, or visit, we'll be happy to help.   GO>


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