By Brian Duffy, Associate General Counsel, Northeast Delta Dental
Kara Wyman, Assistant Superintendent, Merrimack County House of Corrections
Ms. Wyman described the history of the house of correction, noting that the house was originally built in 1983 but a new building was erected in 2005 and the 1983 building was emptied. In 2014, the 1983 building was repurposed as a community corrections center with the goal of habilitating inmates (Ms. Wyman used the word “habilitate” rather than “rehabilitate” because most of the corrections population was never socialized or prepared for life in the first place; this view is consistent with what other presenters will say later in the day) and reducing recidivism.
The new building contains class rooms and functions as much as a treatment center as a jail. Most inmates leave every day for work. Inmates pay for their room and board. Officer go through mental health training and trauma informed training. For the first time Ms. Wyman feels the correction, mental health, and addiction resources are working together. For example, Riverbend counselors are embedded in the house of correction. As a result, the house’s pharmaceutical bill has gone down. Since the 1970s, the number of beds to treat the mentally ill at New Hampshire Hospital has dropped from 1,300 to 278.
The community corrections model started in Sullivan County. Other counties are adopting a similar model.
Stats: 1/100 Americans is under criminal supervision (i.e. parole, probation, pretrial detention). The United States includes 5% of the world’s population but 25% of the world’s incarcerated population. In Merrimack County, roughly 3% of the incarcerated population will need to remain incarcerated; the remaining 97% is or will be out in the community. About 20% of Merrimack County are second generation inmates. 54% of the inmate population has mental health issues. 98% of the inmate population has substance abuse issues. There is significant overlap among these categories.
“The Role of the Courts”
Christopher Keating, Esq., Executive Director, NH Administrative Office of the Courts
The NH Judicial Branch employs 800 people over 46 locations. It has an annual budget of $90 million. It is directed and overseen by the Chief Justice of the Supreme Court. The Judicial Council is separate. It is distinct from the judicial branch; it is overseen by a panel of judges, lawyers, legislators, and citizens. It started in the 1940’s as part of a nationwide movement to modernize courts. In some states, judicial councils became the administrative office of courts. Not in New Hampshire. The Judicial Council has spurred such things as the creation of the family (now circuit) court.
New Hampshire generally does a good job of providing legal services to the poor. In New Hampshire, defendants are entitled to a state-provided attorney if they are charged with a crime involving any amount of jail time. For a number of years, this led to every defendant being provided counsel, as most crimes allowed for a jail sentence even if such sentences were rarely if ever imposed. This led to the distinction between Class A and Class B misdemeanors, with only the former entailing the possibility of jail time and therefore right to counsel. This has saved the public defender program a good deal of money, but the unintended result of this distinction has been lots of unrepresented poor people pleading to Class B misdemeanors, creating criminal records that follow them forever in an era when nearly every job requires a criminal background check.
Every defendant has a right to trial, but the functioning of the courts can render that right meaningless. A defendant often has to appear in court on three occasions (first appearance, second appearance, trial). Each of these trips can be challenging for people who are paid hourly and who may have problems getting to and from court houses. “Efficiency” appears in the court system’s mission statement but the courts are not always efficient for defendants. They appear to be designed to be efficient for court clerical staff.
There are three indigent defense systems in New Hampshire. The public defender program has an annual budget of $20 million and employs 120 lawyers, investigators and staff in 10 offices throughout the state. Contract attorneys are 35 lawyers who contract with the Judicial Council to take cases on a (very low) per unit basis. A misdemeanor = 1 unit; a felony = 3 units. The financial incentive for contract attorneys are to resolve cases quickly, which is not always in the best interest of the defendants. Many contract attorneys take cases at a loss for trial experience and for access to the Public Defender’s Practice Guide. Approximately 1% of cases are handled by assigned counsel, who are paid at a rate of $60 to $100 per hour. These costs can be high and unpredictable. All of these lawyers are part of the judicial branch but controlled by the Judicial Council. Prosecutors are members of the executive branch.
The courts could be improved by more juvenile diversion, and a greater consideration of the effects of fines and fees on an already poor group of people as well as the courts’ dependence upon extracting money from the poor for funding. Indeed, appointed counsel is not free. Even if an individual reports no income, the Office of Cost Containment will seek $5 per month from defendants for appointed counsel.
85% of criminal defendants have substance abuse issues.
“Family Matters: Childhood Trauma and Incarceration”
Monica Zulauf (’11), Development Director, Mayhew Program, Borja Alvarez de Toledo (’17), President, Child and Family Services of NH, Patrick Tufts (’08), President, Granite United Way
Borja Alvarez de Toledo introduced the Adverse Childhood Experiences (ACE) questionnaire. The ACE questionnaire arose out of a weight loss study. But researchers learned that ACE scores correlated strongly with adult health status. And ACE scores tended to compound themselves. 87% of ACE respondents who answered yes to one question answered yes to another, and were 50% more likely to answer yes to more than five. About 33% of adults have a score of zero. Of those that score 4 or higher, nearly 20% attempt suicide. As ACE scores increase, rates of tobacco use, drug use, drinking, and suicide increase dramatically. The lesson of the ACE questionnaire is that social, emotional and cognitive impairment leads to risky behavior leads to disease or disability leads to early death.
One in 28 children in 2016 has or has had one parent incarcerated. This is up from one in one hundred and twenty five in 1985. These children will likely develop problems as they grow older. Childhood mistreatment is the most costly public health issue in the U.S.
According to Patrick Tufts, $1 of spending on childhood intervention and prevention can save $14 on corrections. Indeed, some state use 4th grade literacy rates to plan for future corrections budgets. The ACE test can be used for early intervention programs and in schools. Colebrook and the Mt. Washington Valley are starting this process; it is already used in Spokane, WA.
A child’s chances of success are often determined by zip code. Patrick Tufts reads to Manchester pre-schoolers who rarely see men in suits except for detectives. The United Way now funds counselors in schools to help children deal with the toxic stresses in their lives. The goal is re-program children to counteract the effect of their neighborhoods. While it may take 3 to 9 years to see results, an early indicator is parents showing up at school events and meetings.
The Mayhew program operates similarly to give young boys ages 10 to 18 mentors and modeling of proper behavior. The program takes in about 40 boys each summer.
Tour of Merrimack County Jail
The Community Corrections Center has 50/50 male/female housing, although demand is greater for males. The Center was largely empty, since many residents were at work. Some were in classes. The model is a new one, both in programming and in building design. The average age of the corrections population has grown somewhat over recent years. Inmates generally want to be in the new wing and once there tend to behave. Each inmate has an individual room with a small box for personal belongings. The doors to the rooms do not lock. About 10 rooms look out on a common space with bathrooms, laundry, and a television.
The older wing was occupied. Many women were playing cards; some were attending a class. About 24 women occupied the space. They slept in open bunks.
"The Impact of Substance Use Disorders in our Criminal Justice System"
Hon. Tina Nadeau, Chief Justice, NH Superior Court, Kate Frey (’09), VP of Advocacy, New Futures, Tym Rourke, Director of Substance Use Disorders Grantmaking, NH Charitable Foundation
Justice Nadeau introduced the drug court program. It is designed for habitual users, often with a past of failed rehab and incarceration. It is a high risk high need population. Participants attend rehab 3 times per week, drug court sessions 3 times per week and are tested for drugs twice per week on a random basis. Participants call the court every day to find out if they need to be tested. Prolonged drug use impairs judgment. Drug court participants will slip up. Participants are handled paternally. Many participants were never properly parented; they never became fully functioning adults. Many started using drugs in their early teens and have not held jobs or learned to care for themselves.
The drug court is an 18-24 month program. A participant must be sober for 90 days, have a job or GED, and have paid restitution to graduate. 22% of graduates reoffend. 69% of defendants reoffend after serving a year in the house of correction. The court is collaborative. Judges try to say 4 positive things for every negative thing. It operates through sanctions and incentives. Participants can earn chips and 4 chips in a row leads to a gift card.
The drug court program is available for alcoholics. The challenge for many participants is their family and friends, many of who are themselves addicts. The drug court is fully funded by the state and saves the state money; it is cheaper than incarceration.
Tym O’Rourke spoke about the NH Charitable Foundations $48 million Oliver Hubbard Fund, granted to the Foundation to treat addiction. Addiction is a chronic relapsing disease caused by family history, environmental conditions, and childhood trauma. It is, in short, like any medical condition. Most addicts start using between the ages of 11 and 13. Substance abuse hijacks their brains and many essentially age but retain the brains of 12-year olds. Addiction is preventable through early intervention, screening for early exposure at well-child visits. Youth intervention should focus on immediate impact, not future harm.
Treatment is hard to get in New Hampshire. The only state where treatment is less likely is Texas. But addiction treatment is largely useless without a job or home. This is not just about opioids; more New Hampshire residents will die from alcohol than opioids. Meth is likely the next crisis on the horizon, and it will likely be worse than opioids.
The cost to the state of addiction is estimated at $2.3 billion in health care costs, corrections costs, and lost productivity. New Hampshire enacted a policy to use 5% of profits from liquor sales to fund addiction treatment but has never fully funded that amount. Now the legislature is talking about using those funds for Medicaid expansion.
"Creating a Welcoming State - Civil Rights and the Justice System”
Dr. Dottie Morris (’13), Chief Diversity Officer, Keene State College, Elizabeth Lahey, Esq., Director of Civil Rights Unit, Attorney General’s Office, Lynne Parker, Executive Director, NH Legal Assistance, Chief Anthony Colarusso, Chief of Police, City of Dover
The Department of Justice’s Civil Rights Unit is new. It was established to enforce New Hampshire’s civil rights act and anti-discrimination law, as well as applicable federal laws. Atty. Lahey sees the unit as having 4 purposes: enforcement, education, outreach, and policy development and legislative support. Emerging issues include the need for better data about discrimination and the lack of protections for gender identity under existing law.
New Hampshire Legal Assistance has 35 staff members and represents indigent persons in civil matters. New Hampshire should plan for a more diverse state. Currently, policy, lawyers, judges are not representative of the new population. The court system is designed for two parties with attorneys to debate discrete issues. Now, so much more goes to court: landlord tenant disputes, debt collection, divorce, custody, and child support issues. 97% of tenants in landlord/tenant disputes are unrepresented.
Chief Colarusso discussed the challenges he faces hiring officers who mirror the community, particularly when competing against communities in Massachusetts.
The panel discussed whether there can be justice without equity and fairness. Chief Colarusso felt he saw generational change, but others pushed back on this. If racism is systemic, is it necessary to dismantle the system? Or does any system reflect existing racism?
Is the court system structured to deal with economic disparity? This led to a debate regarding the letter of the law vs. the spirit of the law and the varying ways in which spirit can be interpreted.
The panel asked the class to promote equity and justice, call-out inappropriate comments, get involved in legislative efforts, and to broaden our worldview and comfort zone.