The Real Cost of Prisons Weblog

The Supreme Court recently accepted all their appeals and plans to act on them together as a matter of judicial economy. The cases reached that venue through eight different superior courts. If the state loses, the plaintiffs say hundreds of men and women who they believe have been wrongly incarcerated, some for decades, could be released.

Attorney Richard Lehmann, the former legal counsel to the state Senate, is representing inmate Kenneth Violette of Manchester, an intervener in the case.

"When they amended the criminal code, they never authorized judges to impose these consecutive sentences," Lehmann said. "If the law doesn't allow it, the judges can't do it.

"If a guy robs a bank, it just makes sense to charge him with a single armed robbery instead of 20 counts of reckless conduct against 20 people," he said. "They shouldn't be able to divide a single sexual assault into 20 felonies either."

Rep. David Welch, R-Kingston, heads the House Judiciary Committee and said the inmates have a winning claim.

"I believe that statute was repealed," Welch said. "There's a strong possibility the state has improperly sentenced a lot of people.

"If that's the way the judicial branch interprets the law, they ought to take a second look at it," Welch said. "It may account for the huge growth in prison population. "

Welch was concerned as well with an unknown number of county inmates being sentenced to consecutive terms of less than a year each. That keeps them out of the state prison and out of the state budget.

"I would think that's illegal, too, and it puts the burden directly on the property taxpayer," Welch said. "That could be an unfunded mandate, and who's doing it? The judges make the sentences."

The lead plaintiff, Randy Duquette, sent his brief to the court in June. The other 19 amicus briefs support his.

The group includes Michael Forbes of Rochester, Marc Estes of Dover, Edmour Lefebvre of Farmington and Bruce Usher of Chester. Their filings use the same wording as Duquette's.

Rep. Gene Charron, R-Chester, retired a couple of years ago as superintendent of the Rockingham County House of Corrections and served on the seven-member subcommittee that reviewed the Child Predator Act last session. He confirmed that consecutive sentences are common.

"We discovered that when we researched the bill," Charron said. "It will be interesting if they poke a hole in the practice.

"It doesn't seem possible a thing of this magnitude could go 30 years without somebody picking up on it," the former jail superintendent said. "I've seen some pretty unique legal challenges by inmates, but not something like this."

The self-taught inmate lawyers worked closely with each other, according to plaintiff Estes. In a phone interview, he said he could easily name a hundred men in his situation.

"The outcome of one will decide all the others," Estes said.

Inmate Steven Roy, formerly of Fremont, did much of the writing and research for the appeals. The case won't help him, though. He's serving life without parole for a 1992 murder in Fremont.

Roy has lost two Supreme Court appeals in his own case, in 1995 and 2002, but the experience has versed him in the law. He allowed that a few inmates might get out who belong inside, but he said the case otherwise corrects a massive injustice.

"My only concern is that the judicial assumption of ungranted powers cease and the good men who have suffered from these abuses get the sentences they were supposed to get," he said in a letter to the Golden Dome News. "The pendulum has too long been on the side of ridiculously excessive sentences."

Inmate Ray Ellsworth is rooting for the plaintiffs. He is serving consecutive sentences, too.

"I haven't read the brief, but I've done 11 years," he said. "If they win, I'd be over my minimum."

Duquette's filing says the Legislature approved a new criminal code that took effect Nov. 1, 1973. It repealed the previous law on sentencing, Chapter 607, which had allowed consecutive sentencing.

Two years later, lawmakers passed a law permitting consecutive sentences, but only in rare cases like a new crime while incarcerated.

"Courts began imposing consecutive sentences, sparingly at first, and with increasing frequency over time," the Duquette filing says. "This new-found power helped fuel a massive expansion of the state's prison population and drastically altered the legal climate of the state."

Rep. Laura Pantelakos, D-Portsmouth, serves on the Criminal Justice Committee, and she's also rooting for the plaintiffs.

"Good for them," she said. "I agree the courts give out many consecutive sentences, and nobody can find the law that justifies them.

"Those terms are bad for taxpayers and inmates," the Portsmouth representative said. "Eighty-five percent of them are in for drug and alcohol issues, and we don't have the treatment programs for that. It sets them up to fail."

This page has been printed from the following URL:
http://www.seacoastonline.com/news/08022006/nhnews-ph-con-prisoner.lawsuit.html