Criminal Legal Reform in New Hampshire: One Law Professor's Activism

Authors

Albert E. Scherr

Abstract

Criminal legal reform is a perpetual work in progress. The system itself is, at best, maddeningly imperfect. It too often fails to produce anything close to justice. Structural problems afflict the system in a way that incarcerates too many people, particularly people of color. For example, over the last thirty years, the Innocence Project has demonstrated imperfections in the system caused by faulty eyewitness identification procedures by ineffective assistance of counsel, by prosecutorial misconduct, by shoddy forensic practices and by police behavior that produced false confessions.

That the United States has well over fifty-one independent criminal legal systems frustrates efforts at reform. Though the federal system covers the entire country other than tribal jurisdictions, it handles less than ten percent of all the criminal cases. The highly touted 2018 Second Chance Act (SCA) reauthorization primarily addressed federal criminal legal reform. Congress could only address state criminal legal reform in the SCA through grants to state, local and tribal government agencies as well as non-profits.

Momentum for criminal legal reform has increased due to such events as the shooting of Michael Brown on Ferguson, Missouri and the murders of George Floyd in Minneapolis, Minnesota and Breonna Taylor in Louisville, Kentucky. Those and other events particularly highlighted the need for police reform but also created momentum for other criminal legal reforms. But the question quickly became whether that momentum would reach the epicenter of criminal legal systems–the states–or whether it was too diffuse to have a local effect in jurisdictions untouched by Ferguson-, Floyd- or Taylor-type events.

This article addresses the progress of criminal legal reform in one state–New Hampshire–over the last seven years of which University of New Hampshire faculty and students were a significant part. It looks closely at the anatomy of such reform: its sources, its nature of its sponsors, the whys of its successes and its failures. It includes an analysis of economic justice issues like debtors’ prisons, right to counsel for indigents, recoupment of cost of appointed counsel and bail reform. It analyzes post-conviction reforms in DNA testing, drug sentencing reform and fair chance hiring for the formerly incarcerated. It also analyzes systemic reforms in eyewitness identification procedures, the right to refuse to consent to a search and the recording of custodial interviews. Finally, it explains a new constitutional amendment on information privacy.

This broad spectrum of criminal legal reform efforts in the last eight years presents a set of common themes. Municipalities very often misuse the criminal legal system to address the complex challenge of homelessness. Many in the system directly or indirectly resist efforts to gather enough data to understand the presence of racism in the criminal legal system. The criminal legal system over-punishes the economically disadvantaged simply because they are economically disadvantaged.

Repository Citation

22 U.N.H. L. Rev. 455 (2024).