CONCORD — Advocates for criminal justice reform are promoting a bill that would make it easier to get certain convictions annulled, but they’re running into stiff opposition from victims’ advocates, the court system, law enforcement and the attorney general.
The bill, SB 311, passed the Senate on a 16-8 vote in March but has stalled in the House, where the Criminal Justice Committee has held three work sessions on it.
A fourth one has been scheduled for Tuesday, May 28, after which the committee could recommend the bill be retained for further study.
That’s what ranking Republican member and former committee chair David Welch, R-Kingston, suggested at the end of a May 21 work session that did not appear to go well for the bill’s supporters.
SB 311 would allow people convicted of a first-time Class A misdemeanor or certain felony drug possession charges to apply to have the conviction removed from their record as soon as they complete their sentences.
It would also allow indigent defendants convicted of domestic violence charges to expunge their records before they complete paying restitution to their victims, and the waiting period to annul DUI offenses would be reduced from 10 to three years.
The provision allowing annulments before complete payment of restitution has drawn the most fire from opponents and the most concern from lawmakers.
Current state law requires offenders to comply with all terms and conditions of their conviction— including fully paying restitution to their victim — prior to being eligible for annulment.
“According to our research, no other state in the country allows offenders to petition for annulment prior to fully paying their victim restitution. In essence, this policy change represents a dramatic departure from nationwide practice and the observance of victims’ rights,” according to Jessica Eskeland, public policy specialist with the New Hampshire Coalition Against Domestic and Sexual Violence.
UNH law professor Albert Scherr, who has worked closely with ACLU-NH on criminal justice system reform legislation, offered an amendment that would require the courts to keep annulled cases open for the purpose of collecting restitution.
Officials from the departments of Corrections, Safety, Justice and the state court system say that’s just not practical once a conviction is expunged.
“If a case is truly annulled, it is treated for all intents and purposes as though it did not happen,” says Eskeland. “Essentially, criminals could erase their crimes and not have to pay their victim back for the damages they inflict.”
Scherr maintains that current state law allows for a conviction to be used in a subsequent prosecution even though it’s been annulled.
“There are some circumstances where there is high restitution and the person is indigent and will take a very long time to pay it off, but has otherwise completed a sentence and shown the judge that he or she has exhibited the kind of behavior worthy of annulment,” said Scherr.
“We don’t want to have a person paying $5 a month never able to improve their employment circumstances. We want to give them an opportunity to improve their financial circumstances by getting a better job.”
Scherr said current state law allows a judge to call an offender back into court for failing to pay restitution even though a conviction is annulled. The fact that the court administrative systems don’t enable such enforcement after annulment amounts to “the administrative tail wagging the dog called application of the annulment statute,” he said.
If the bill does get retained by the House committee, it could emerge with new amendments for consideration in the 2020 session.