Report: More data needed to effectively evaluate of Felonies First program

Monitor staff
Monday, October 23, 2017

A second annual report from the New Hampshire Judicial Council concludes it’s too early to effectively evaluate a statewide program designed to streamline felony cases.

The program, Felonies First, just took effect in all 10 counties Oct. 1, after more than a year of staggered implementation. Two of New Hampshire’s largest superior courts, based in the Hillsborough County cities of Nashua and Manchester, were among the last to come on board.

Even in counties where the program rolled out months ago, key stakeholders – to include prosecutors, defense attorneys and law enforcement agencies – are not all maintaining the data necessary for a thorough evaluation of Felonies First, the judicial council said in its report, published Oct. 16. Of the data that is available, it is largely complicated by a worsening drug crisis that has led to a steep rise in felony arrests.

“While anecdotal information provides limited insight into Felonies First, a scarcity of data precludes a more objective empirical analysis. To fully assess the impact of Felonies First, data sets from numerous stakeholders must be collected and analyzed,” the report reads. “At this time, all relevant data is not even being captured.”

The 24-member state council says it plans to remedy the situation for future reports. Executive Director Sarah Blodgett could not be reached for comment Friday about how the council plans to work with each county to accomplish that aim.

State law mandates that the council submit a report to the Speaker of the House, Senate President and chairpersons of the Senate and House Judiciary Committees on Felonies First each year, beginning in July 2017 and ending in January 2020.

Under Felonies First, more serious criminal cases are handled in the state’s superior courts, instead of starting in the circuit courts, where they were traditionally filed. The circuit courts do not have the authority to resolve felony cases, which is why they were forwarded to superior court after a probable cause determination.

Felonies First eliminates the automatic probable cause hearing, although the defense can still request one at the superior court level. Under the old system in place for decades, probable cause hearings were waived by defendants 87 percent of the time, according to Tina Nadeau, chief justice of the superior court system.

The program took effect in Merrimack County in January, and attorneys and law enforcement officials alike say they’re still trying to navigate the new system, which challenges traditional practices. In interviews and written submissions to the judicial council, many said they are committed to the success of Felonies First, but noted the hurdles they have yet to overcome.

A primary concern is the 24-hour window attorneys have to prepare for arraignments after a felony arrest in which the defendant is held on bail. That process includes a truncated evidence gathering process for law enforcement, less time for prosecutors to review that evidence and determine appropriate charges, as well as a scramble by defense attorneys to meet with clients and determine appropriate bail arguments. Arraignments frequently don’t start on time as a result as a result of these challenges, court clerks said.

Defense attorneys with the New Hampshire Public Defenders Office also expressed a shared concern about whether the number of felony cases resolved as misdemeanors is dropping under Felonies First. Randy Hawkes, executive director of the office, said preliminary data shows a steady decline in the number of misdemeanor resolutions since felony cases have been filed in the state’s superior courts. If that trend continues, he said, the office, which has divisions statewide, with incur additional costs in staffing.

Nadeau addressed those points in her written submission to the council, and questioned whether any conclusions can really be drawn at this stage. That is in part because “current data fails to account for the number of felony arrests that were filed as misdemeanors in superior court because the county attorney believed a felony arrest was not supportable,” she said, adding that Felonies First adds an extra layer of review.

Under the old system, felony cases “may have been filed by law enforcement in circuit court, and though they may have resulted in misdemeanor guilty pleas, or dismissals, the defendant would have been subject to (a) court process that the County Attorney in the current system would not have pursued,” she said.

Although the program is in the early stages of implementation, counties throughout the state, including Merrimack County, have noticed a decline in the number of transports per defendant over the life of a case. What complicates the numbers is that counties are also seeing an increase in felony arrests, in large part due to the opioid crisis. The number of drug arrests in the state increased by 73 percent between 2014 and 2015, just prior to the rollout of Felonies First, according to the report.

“The opioid crisis has occurred simultaneously to the implementation of Felonies First, clouding the data and altering the criminal justice landscape,” the report says.

No public hearings are scheduled on the report at this time.

(Alyssa Dandrea can be reached at 369-3319, adandrea@cmonitor.com or on Twitter @_ADandrea.)