Legislators told to make sure crime victims get restitution before criminal cases are erased  

  • Thousands of court documents, dating back 10 years, are stored in the cramped basement of the Merrimack County Superior Courthouse. Surplus documents are sent to Mancheter for storage. CAMERON JOHNSON

  • A Merrimack County Superior Court daily calendar is seen inside the Merrimack County Courthouse in Concord on Thursday, March 31, 2016. (ELIZABETH FRANTZ / Monitor staff) Elizabeth Frantz

Monitor staff
Published: 5/21/2019 5:11:14 PM

Offenders in New Hampshire are eligible to have certain criminal convictions erased only after fully paying restitution to their victims, but a bill now before a House committee could allow for criminal records to be wiped clean before that financial obligation is met.

While Senate Bill 311 aims to streamline the annulment process by reducing the waiting period, expanding eligibility and eliminating fees, opponents say the proposed reform would remove the judicial branch’s ability to monitor and compel restitution payments once the case is sealed and leaves the public records system. Further, prosecutors say the bill could have a significant and direct effect on plea negotiations where an offender’s willingness to pay restitution is commonly weighed in favor of a less severe sentence.

“How can there be trust moving forward that person is going to pay?” Assistant Attorney General Sean Locke asked lawmakers during a House committee work session Tuesday. “The prosecutor will be far less inclined to reduce the amount of time a person is incarcerated for if the restitution is not enforceable.”

Criminal reform advocates, including the New Hampshire’s American Civil Liberties Union, argue the bill fixes a decades-old problem with the annulment law which unfairly discriminates against those who are indigent and grappling with how to pay thousands of dollars in restitution. They say the current law prolongs the process for both the offender and the victim, and that timelier annulments would pave the way for offenders to seek out higher-paying jobs that, in turn, allow them to pay down their debt faster.

“We don’t want this person paying $5 a month to never have the opportunity to improve their employment circumstances,” said Albert “Buzz” Scherr, a professor at the University of New Hampshire School of Law in Concord.

Scherr told the committee that state law explicitly allows for convictions, even when annulled, to be used in subsequent prosecutions. He said he worked closely with lawmakers on an amendment that would require the court to hold a hearing post-annulment, with the victim present, to ensure restitution obligations will be met. 

But court officials say the proposed change still doesn’t satisfy their concerns and could take the state into uncharted territory.

“How can we hold a public hearing with a lot of people in the courtroom and somehow pretend the conviction never happened?” asked Karen Gorham, superior court clerk of the judicial branch.

Republican Rep. Daryl Abbas, a member of the House Criminal Justice and Public Safety committee, said the provision of the bill that allows for an offender to qualify for an annulment prior to fully paying restitution is somewhat of “a legal impossibility.”

“I look at it as you’re canceling out one legal fear and creating another,” Abbas said to Gorham.

“I look at it the same way,” she said.

The New Hampshire Coalition Against Domestic and Sexual Violence, whose advocates previously testified against the bill, put forward an amendment Tuesday that eliminates the provision at issue. The coalition’s amendment also incorporates a section of the state’s Victim Bill of Rights that allows for victim notification of the offender’s petition for annulment and a court hearing where the victim can be heard.

“While criminal justice reform efforts are appropriate in some cases, it’s critical that victims’ rights aren’t trampled along the way,” said Amanda Grady Sexton, the coalition’s director of public affairs. “Victims of crime deserve to be made financially whole and should not be forced to bear the cost of their own victimization, especially when the convicted perpetrator is allowed to wash their hands of accountability.”

According to the coalition’s research, no other state allows offenders to petition for annulment prior to fully paying restitution to victims.

During Tuesday’s work session, prosecutors, court officials and advocates also raised concerns about a section of the bill that would reduce the window for prosecuting subsequent impaired driving convictions from 10 to three years. As a result, a person with an out-of-state conviction might be treated differently than someone who had the opportunity to have their conviction annulled in a shorter time frame, opponents said. 

The committee elected to continue the work session until May 28. At least one committee member suggested holding on to the bill until the next legislative session.

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