Why CACR22 failed 284-51

It is an important responsibility of all of us as lawmakers to ensure victims of any crime are afforded the protections they need, the opportunity to remain informed as the to the disposition of their case and to provide them with the respect and support needed as they move through the judicial process.  CACR22, or Marsy’s law, was an attempt to do that but, however laudable that endeavor, I believe the path this law took was flawed and had the potential to negatively impact our criminal justice system, including how victims may be treated.

The main goal of Marsy’s law is to place victim’s rights on a par with the rights of the accused. Currently, the accused’s rights are constitutional while victim’s rights are statutory.  The accused's rights are listed in the constitution because they are designed to protect the accused from the abuse and overreach of the government, as the accused’s civil rights and basic freedoms are at stake. The rights of the victim are there to protect the victim from the accused and not the state, as the victim is not at risk of going to prison and his or her civils rights are not at stake. The rights of both parties are equally important but they occupy a different space in the judicial system.

The rights of victims as listed in Marsy’s law already exist under state law in the New Hampshire Victim Bill of Rights which is far more extensive than what is proposed in Marsy’s law. These rights are found on the Department of Justice’s website where it lists 22 different rights. The problem appears to be that, in the past, these rights were not as well enforced as they should have been in the courts.  Adding a constitutional amendment outlining a subset of the same rights will do nothing to guarantee enforcement.

Marsy’s law would also allow any victim to be present at all court proceedings not just for adults accused of a crime but also for any accused juvenile, setting up a potential infringement of the civil rights of that juvenile. Often, in such situations, there are extenuating circumstances such as sexual abuse or physical violence suffered by the juvenile. This young individual may suffer from a mental illness or some other manner of disability that would require private, confidential consultations to determine the competence of such a child to stand trial. Under Marsy’s law, the victim could ask to attend such consultations, violating the juvenile’s right to privacy. Having the victim present at such interviews is not only unnecessary but might also be potentially harmful and counterproductive. This possible infringement would also pertain to adults with developmental disabilities.

Further, Marsy’s law guarantees full and timely restitution should restitution be appropriate. The lack of qualification or specification in the legislation as to where this responsibility lies opens up the possible interpretation that the state would have to take on that financial burden should the accused by unable to meet that demand.

The proposal, as written, pertains not only to felonies but also to misdemeanors. Offenses being prosecuted would involve both violent and non-violent acts, opening up tens of thousands of non-violent, misdemeanor level crimes to the provisions of the amendment, overburdening the court system with regards to both time and money.  Currently, the statute only applies to felonies.

Marsy’s law defines the concept of a person as not only a natural person, but also, as written, to include multi-million dollar corporations, both in and out of state. The intent of the legislation is to provide help to mom and pop businesses, but the language goes beyond that. Financial resources which should be directed towards victims of violent crimes in this state may have to be diverted towards the cost of defending major businesses from out of state. This is certainly not what Marsy’s law intended but that is how it may be interpreted and thus, enforced.

Marsy’s law states that the victim can refuse to be deposed. If the judge determines that a deposition is necessary, it is unclear if the victim can still refuse. To be able to do so would hamstring the judicial system and infringe on the rights of the accused.

In the end, a provision in Marsy’s law basically indemnifies the state from any damages should there be any violations of the amendment, making the law essentially unenforceable. This begs the question, if it can’t be enforced, what is the point of going through the motions of adding it to our constitution?  The monies that would be spent on litigation sorting out what Marsy’s law really means would be better spent making sure that the rights that already exist are enforced.

Two years ago, South Dakota passed a similar version of Marsy’s law. This fall, they are voting to repeal it for two reasons. First, it did not work as they expected and second, the financial costs were exorbitant.

Currently, the New Hampshire Victims’ Bill of Rights exists in law and is enforceable. The way forward is not to adopt a flawed amendment, but to make the necessary changes at the state level. Legislation can be introduced to address enforcement problems during our regular sessions in a far more timely and less expensive manner.

If, in the end, we determine there may be a place in our constitution for an amendment that reinforces the high value we place on victim’s rights, Marsy’s law is not the right amendment. Those who found they could not support CACR22, as written, include judges, prosecutors, defenders, law enforcement and even some victims. These individuals ought to be involved in addressing the problems listed here and in the public hearings in Concord, and in drafting language that will work.

The NH House of Representatives voted down CACR22 by a vote of 284-51. This does not have to signal the end of the discussion, but the beginning of a way forward that will result in a New Hampshire solution created by Granite Staters, not out-of-staters, for New Hampshire and its citizens.


 

Posted on 30 Apr 2018, 14:40 - Category: NH Legislature



Saga of SB66

There might not be a lot in the way of rail travel in New Hampshire, but you can still get railroaded, which is exactly what happened in the Criminal Justice and Public Safety Committee of the NH House of Representatives during the 2017 session.

The issue before us was a proposal to ascribe “personhood” to a fetus in order to create two criminal offenses when the death of a pregnant woman occurs through the hands of another.  Everyone agrees that an assault on a pregnant woman resulting in death is an egregious crime and deserving of serious punishment. The question is what approach to take.

One approach is to institute an enhanced sentence for an individual responsible for the death. For instance, instead of a 7-15 year sentence, the sentence could be extended by another 15 years if the woman was pregnant at the time of her death. Another approach is the one that seeks to bring two crimes to court, the death of the woman and the death of the fetus. Although fraught with significant problems, this was the approach that was taken by SB66. In focusing on the personhood of the fetus, the bill before the committee was, simply put, bad legislation.

The essential problem is that instead of using this law to punish a person who causes the death of a pregnant woman, the law has been used to set up  conflict between the woman and the fetus. In the states with nearly identical bills, pregnant women have been arrested because a judge or person in law enforcement determined that the would-be mother was a hazard to her baby.  The National Women’s Law Center reported that “At least one court has stated that a woman could be held criminally liable for a stillbirth if she does anything that could harm her pregnancy, including the use of both legal and illegal substances, missing prenatal appointments and not obtaining ‘adequate’ health care.”  One must remember that these are planned pregnancies by women who want these babies.

Incarcerated women have been held in jail beyond their sentences not because of any additional crime they committed but because they were pregnant. In Maine, a judge made sure that a pregnant woman, convicted of a crime, was held in jail until the end of  her pregnancy, even though defense council and the prosecutor recommended she be sentenced only to time served. The judge in the case felt it was his duty to “protect the public from further crimes of the defendant and that public…should likely include the child she’s carrying.”

In the most egregious case I have read about, a woman in Florida, who wanted to have a vaginal birth, was denied the option by the hospital, because of a previous cesarean. She opted to have the baby at home with a midwife because she could not find a doctor who would assist in a vaginal birth. When she went into labor, the sheriff arrived, strapped her into an ambulance and took her to the hospital where she had a cesarean section against her will. Following the birth, when she protested this action in court, the new-born was awarded a lawyer but the mother was not. In the end the court said that her rights did not outweigh the rights of the fetus she was carrying at the time. Could anything be more Orwellian?

This is what happens when a fetus is ascribed personhood. Instead of considering protection for the mother and the fetus, the well being of the fetus is set against the well being of the mother. I am sure that in the states where these events occurred, people swore that such things could never happen there, but they did. Even if the intention is not to abuse a pregnant woman’s rights, it only takes a misguided judge to go down that path.

It became clear that the issue was not more serious sentencing when a pregnant woman dies. The real intent was to hobble a woman’s right to control her reproductive health and access to care. This was a first step in undermining a woman’s right to choose.

In committee, the instances referenced above were of concern to the committee and were reflected when the  “Ought to Pass” recommendation failed. Because the entire committee felt this was an important issue, the bill was retained so that we could take the time to craft legislation that protected both mother and fetus and appropriately punish the person responsible for the death of the woman. When we adjourned that meeting, we expected we would meet over the summer to do just that, using the enhanced sentencing model.

Out of the blue, without public announcement, the Democratic members of the committee learned through the grapevine, that the committee’s recommendation to retain had conveniently not been recorded in the clerk’s office, when all other actions of the committee had been duly recorded. That meant that the bill was still active in committee. We further learned that there was going to be a vote to reconsider the vote to retain.  On that day, over the protests of the Democrats on the committee, the vote to reconsider passed and a further motion was made to pass the bill, which succeeded.

In order to achieve this, Republicans who did not support SB66 but were willing to work on the enhanced sentencing model, were noticeably absent that day. They were replaced by other Republicans, all women, as if that was going to somehow ameliorate the blatant abuse of power of the majority party,  who would vote the way Republican leadership dictated. The full committee had held hearings and heard from many people on this issue. The ringers brought in had heard none of this testimony. They voted they way they were told to vote without any knowledge, nevermind understanding, of the issues. Due process was kicked to the curb and the vote was a sham.

The shabbiest part of this charade was that it took away the opportunity for the whole committee to do their work and craft  a bill that would deal with criminal acts against pregnant women resulting in their deaths and at the same time protect her from the abuses that have occurred in other states.

But the story did not end there. It gets worse. Only after the bill had been passed by the full house,  did they realize that the bill was written in such a way that it gave pregnant women free rein to kill anyone during their pregnancy. This was due to an amendment quickly submitted that purported to protect women who underwent abortions, which are legal and part of every women’s reproductive rights. The correct thing to do at this point would have been for the governor to veto the bill and send it back to committee to address this issue, and along with any other problems the bill had.

This is not what happened. Instead, the EBA (Enrolled Bill Amendment) committee, which is charged with correcting misspellings, capitalization mistakes, punctuation errors and minor things like that, took on the inappropriate task of “fixing” this bill. Their justification for doing so was that they “understood” what the committee meant and they could fix that. Nevermind that this affects the entire criminal code and sets a dangerous precedent that the EBA gets to change what it wants in bills when their charge is basically to fix typos.

The Republican leadership claimed they had done their “due diligence” by bringing this to the full house for their consideration. Of course, this was mere window dressing as the vote went along party lines, because the Republicans were told how they were to vote and they did what they were told, nevermind if it went against their conscience or against their constituents.

The concerns surrounding the bill were shared by many on both sides.  A number of our Republican colleagues came up to me to say they had the same concerns about how pregnant women could be and are abused under this type of law. They went on to say that they could not vote based on their concerns because of the pressure they face from their party’s leadership. It was a frustrating experience to see due process utterly disrespected and that Republicans are not encouraged to vote their constituents, or their conscience, but have to fall in lockstep with whatever their leadership demands.

Make no mistake that women’s reproductive rights are under attack. Everyone who values human rights has a responsibility to take note of the farce that took place in the NH House of Representatives and speak out in support of women’s rights. The story is not over. This session, there is a bill, HB1511,  that seeks to establish viability at 8 weeks. It also strips away the protections for women in SB66. This is step two in taking away a woman’s right to choose. If this passes, next session there will be an even more draconian measures introduced that will further erode women’s rights. Out of over 180,00 voters polled in New Hampshire, 73% support a woman’s right to choose but the legislature is not representing these voters. It is utterly critical this year that these voices speak out against this assault on women.

 

Posted on 13 Jan 2018, 14:40 - Category: NH Legislature



Why I am voting against the 2018-2019 NH Budget

There are key elements in this year’s budget that make it impossible for me to support it. Regardless of what appears to be short term gains, the long term results are very serious deficiencies further down the road.

In particular:

The Republicans are very proud of their reductions of the Business Profit Tax and the Business Enterprise Tax. The total cost of lost revenue over years is estimated to be around $650 million. The problem is there is no plan to replace that money. The loss of that  money, which is used to support current programs, means the cost of those programs will be downshifted to local government and that means that property taxes will likely rise. That means that while business may get a reduction in their taxes, the rest of us will end up paying higher property taxes.

The proposed budget for the university system is flat funded, which realistically means that due to inflation, they are actually taking a cut in funding. That coupled with the fact that monies from the Governor’s Scholarship Fund can go to private colleges makes the reduced funding of the university system unacceptable.

For reasons only political, the budget includes the Hyde Amendment, which says that federal monies cannot go to pay for abortions. That is a federal requirement and including it in the state budget has no meaning except to further politicize the budget process and symbolically undermine women’s rights.

Development Disabilities services will be under funded to the tune of $36 million. After important work to reduce the number of people who are on a waiting list for services, this reduction will cause that wait list to grow by the hundreds.

Pay increases for those who work in the mental health field were eliminated.

Retired state employees under the age of 65  will see their health care benefit costs increase from 17.5% to 20% . Those over 65, who now pay nothing,  will have to pay 10%.  This is a broken promise the state made to those employees, who worked for the state for the duration of their careers, accepting lower salaries because they were guaranteed additional retirement benefits to compensate for the lower wages. This is just plain wrong.

There are other reasons, but these are the highlights, or the lowlights, of the proposed state budget and the reasons why I cannot in good conscience vote for it.

 

 

Posted on 20 Jun 2017, 18:33 - Category: Politics



Fisher and the Red Pill

A tisket a tasket and tit for tat.

Most people are aware of the controversy surrounding Representative Fisher and his connection  to the misogynistic website the Red Pill,  a demeaning site which  promotes violence against women. During a recent NH House session a motion was made to hold a hearing regarding Rep Fisher’s comments about women and his ties to this site. In a move that was a transparent, and shabby,  tit for tat, another representative put forth a motion to investigate Representative Sherry Frost at the same time because of some of Frost’s tweets. I assumed, as did a number of other representatives, that these tweets were made in response to The Red Pill and Frost’s condemnation of a site so vulgar and insulting to women. This was not the case. Instead the tweets were made months prior to the news about Rep. Fisher and completely unrelated.

The result was one motion, which passed,  to hold two hearings for two individuals on completely unrelated issues. I am not aware of any situation where two individuals would be lumped together unless the two offenses were somehow related. Because the two hearings were unrelated, we were instructed  not to make comparisons between the comments of the two representatives. However, since this was most obviously an eye for an eye, it seems that some comparison is appropriate at this point, to put in perspective the difference between the two.

Fisher’s comments promoted violence against women. He is quoted as saying "Rape isn't an absolute bad, because the rapist I think probably likes it a lot. I think he'd say it's quite good, really.” Rep. Frost said after one of our more frustrating session days, she was feeling “homicidal.” This is hyperbole; Fisher’s comment condoned rape. Fisher said that in order to commit rape, one only needs “roofies” and “duct tape.”  Frost used the f-word. Fisher said women have “sub-par intelligence” which only demonstrates Fisher’s sub-par intelligence. Frost made the comment that terrorists are “mostly white, Christian men.” which is, in fact and sadly, true.

At the hearing for Frost, one element I found to be quite extraordinary was the vagueness of the allegations against her. Cilley asked Rep. Hinch, the chair of the Legislative Administration committee, if he could articulate exactly what the allegations were and on what information the final report on Frost would be based. Rep. Hinch seemed unable to do so and resorted to obfuscation, a device used when your goal is to confuse people even more.  He succeeded. He said that the report presented to the house would be “relative to the merits of the allegations made.” Pressed further as to what those allegations were, he said the allegations were “relative to the remarks we have seen on public websites.” Lot of relating going on here but not a lot of content.

This is not just about freedom of speech. Pretty much anyone can say anything in the world of the internet. These days, the wide open frontier of the internet requires us to show a little intelligence and proportion. Some people may have found Frost’s use of the word “homicidal” and bit extreme, but it was clearly used as a figure of speech and she was not actually homicidal. Fisher flat out has condoned rape. Frost may have shown impatience which could have been interpreted as unprofessional, but Fisher directly and indirectly incites violence towards women.  In my view, Frost’s tweets are quite tame compared to many others. Fisher’s are deliberately degrading towards women. A representative of the government who unswervingly promotes a culture of rape and misogyny should be at the very least censured.  Frost’s remarks, while perhaps a bit insensitive, do not rise to the level where attention is required, in my view. Instead, the two and a half hours of her hearing could have been better spent in silent contemplation of the meaning of justice and perspective. No sensible person would be unduly alarmed at Frost’s comments. Fisher’s however, present a real threat and one that has been trolling around on the internet for many years now, with Fisher's’ apparent full support and encouragement.

In the end the Legislative Administration office chose to take no action against Fisher or Frost. The most bizarre event was reported in a press release from the House Democratic Office.  Although during the Frost hearing people were cautioned that they could not refer to anything that was said during the hearing for Fisher,  “Before the final vote, Chairman Hinch ruled that the two members must be considered together under a single recommendation and that the minority would not be allowed publish a minority report.” These procedural shenanigans are a transparent, high-handed attempt to control the outcome, and they seriously undermine the credibility of the committee. The final vote on Fisher is a whitewash of his egregious positions toward women. And, in a hearing about free speech, which deliberately limited free speech, free speech was further hogtied because the minority was prevented from presenting their report. The final irony is that after all this, Fisher did have the good sense to resign his seat.

 

Posted on 17 May 2017, 20:38 - Category: NH Legislature



Right To Work

It is hard to find information that is not slanted one way or the other. Sometimes it is misleading while other times, it is just plain untrue, if not deliberately false. It is human nature to seek out information that supports our views but it is important to suppress that tendency in the search fact. Where all fashion of information and mis-information is available, it becomes our responsibility to use our abilities and intelligence to discern what is accurate and what is not. It is also important that we consider consequences of particular proposals and arguments. I found this especially confounding with regard to Right to Work laws.

The New Hampshire Senate recently supported passage of Right to Work in New Hampshire.  This was done in the face of significant and united opposition from the workers who would be negatively impacted by this legislation.

I attended several hours of the committee hearing. Some of the arguments for Right to Work bordered on the comical, likening unions to kidnappers and rogue taxi drivers. Other arguments, which sounded reasonable, had nothing to do with the proposed legislation. Arguments against Right to Work were often a little vague for my taste. So I set out to educate myself.

By and large, arguments for Right to Work claim that, because NH is not a Right to Work state, businesses are not moving here and NH businesses are not growing. However, when one examines what businesses actually say are the barriers to relocation or growth, high utility costs and the lack of a trained workforce lead the list, not RTW (Right to Work). Also on the list of concerns is lack of access to transportation, lack of affordable housing, and quality of education. This is according to articles in the Boston Globe, Seacoast online, and NH Business Review. Most business owners surveyed in NH do not list Right to Work as a barrier to growth.

I looked for articles that support Right to Work. When reading one article, I felt as if I was part of a verbal shell game. This article by James Sherk (Heritage.org) listed “myths” of RTW as reasons why unions are opposed to it. In debunking such “myths” the author put forth arguments that have nothing to do with the so-called myths, but sounded like they did.

For instance, the article says the claim that RTW legislation would prohibit unions is not true. Right, technically, RTW does not prohibit unions. RTW weakens them. The article goes on to say that RTW makes paying dues voluntary. But, RTW does not make paying dues voluntary because they already are voluntary. The author gives credit to RTW for the status quo which is ludicrous. It is like giving credit to birds for the sky being blue. Joining a union is not required for employment in any field. Dues are voluntary.

Further the author talks about the “myth”that RTW lowers wages and answers that by saying that, while wages are indeed lower in RTW states, that does not matter because buying power is the same or higher in RTW states. That is not the same thing. According to Jared Bernstein, buying power is tied to falling prices and working longer hours. Lower wages are still lower wages, and when wages are lower than they used to be, buying power is also decreased. Having to work longer hours in order to maintain buying power is not a benefit.

The claim that the majority of Americans support RTW legislation is also misleading, because that was not the question asked. The Gallup poll cited by Sherk asked whether or not Americans felt that workers should be forced to join a union, which does not translate into support of RTW. Union membership is not only not required but it is illegal to attempt to force any person to join a union.

The essential question to be asked is whether or not non-union workers should be charged for benefits they receive that the union negotiates for on their behalf. Unions are required to represent all workers, regardless of whether or not that worker is a union member. However, as non-union members benefit to the same extent as union members, unions charge what amounts to a “service fee” for negotiating those benefits. These benefits include wage increases, vacation, health benefits, and workplace safety. As part of the contract, the union and the employer negotiate an amount that will be charged to all workers to pay for the cost of that representation. This is referred to as a union security clause. These fees allow the union to pay for the costs of collective bargaining. In the end, whatever fees are charged are much lower than the benefits these workers receive through collective bargaining in the way of higher wages. Without this mechanism in place, wages for all workers across the state would be lower, union shop or not. For each individual worker, this service charge pays for itself many times over.

The effect of Right to Work is that it allows workers who are not union members to avoid paying for this service, a practice referred to as “free loading.” The result is that unions are weakened as the amount of money they can collect to pay for their work is reduced and at some point, maintaining the union becomes untenable. And what happens when there is no union representation? Wages are lower and workers have little recourse to protest.

It is also worth noting that it appears to be the business owners who are the ones leading the charge and not the workers themselves. Business owners have always disliked unions and have continually looked for ways to diminish their ability to broker for higher wages and better working conditions. RTW is merely another attempt to undermine the good work that unions do on the behalf of every worker, union members or not. RTW is not really about these service   charges, but an attempt to weaken union’s ability to collective bargain for better wages and a safer work environment for everyone.

One article I read likened this situation to that of paying taxes. If paying taxes were a voluntary activity, most people would opt out.  What, then, would happen to the services that we all use, paid for by taxes, such as police and fire protection, or roads? With a smaller pool pitching in to help defray these costs, we would soon not have much in the way of a police force.  A diminished fire department would not be able to respond to fires in the way that we have come to expect. Roads would eventually become unusable. As we all benefit, we do not consider it unreasonable that we all pitch in and we can appreciate what would happen if this was not the case.

If taxpayers are not happy with how taxes are used, they have the opportunity to elect new representatives. If workers do not think union leadership is achieving satisfactory results on their behalf, new leadership is elected.

It is not exactly the same thing as unions, but there are parallels. If a union cannot pay for what it costs the union to collective bargain on the behalf of everyone, as stated by law, then all workers would suffer with the same lower wages and reduced benefits. This is exactly what has happened in RTW states. Wages are lower for all workers in those states.

The most comprehensive study I found on the effects of RTW was from the Economic Policy Institute, in an article called “Right-to-Work States Still Have Lower Wages,” written by Elise Gould and Will Kimball, April 22, 2015. These researchers concluded that, “No matter how you slice the data, wages in RTW states are lower, on average, than wages in non-RTW states.”

They go on to say that “these results do not just apply to union members, but to all employees in a state. Where unions are strong, compensation increases even for workers not covered by any union contract, as nonunion employers face competitive pressure to match union standards. Likewise, when unions are weakened by RTW laws, all of a state’s workers feel the impact.”

In the end, according to Brad Plummer from the Washington Post, however you look at it, the bottomline is “business owners gain, and workers lose.”

Posted on 23 Jan 2017, 16:35 - Category: Politics



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