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N.H. Lawsuit Highlights Prison Inmate 'Pay to Stay' Law

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A former inmate who blames the New Hampshire prison system for his poor health said he is being retaliated against for suing the state.

Eric Cable sued the state in March alleging prison officials were negligent in not properly treating him for Type 2 Diabetes by failing to perform regular lab tests, foot exams or thorough eye exams. The state denied the allegations, and filed a counterclaim in July seeking a $119,000 reimbursement for the cost of Cable's incarceration.

The American Civil Liberties Union of New Hampshire now wants the court to dismiss the state's counterclaim, calling it a shameful attempt at retaliating against Cable, who was convicted in 2013 of causing the death of a Manchester man in a drunken boating accident on Northwood Lake the previous year. He was released from prison in 2017 after serving nearly four years for negligent homicide.

"Allowing this counterclaim to proceed would be deeply harmful," ACLU lawyers wrote in a motion filed Tuesday on Cable's behalf. "It would have the obvious effect of deterring inmates from bringing valid claims — including constitutional claims — against the state prison system."

New Hampshire's so-called "pay-to-stay" law took effect in 1996. For current inmates, the attorney general's office can seek reimbursement if it determines that an inmate has sufficient assets to pay for all or part of his or her incarceration costs. Inmates who object can request hearings, and courts are required to consider the inmate's other financial obligations. But the provision that allows the state to recoup money from former inmates lacks those safeguards, according to ACLU attorney Henry Klementowicz, who filed the motion on Cable's behalf.

"This practice is a way for the state to essentially immunize itself from liability by prisoners because there's nothing stopping them from doing this in every case where an inmate sues," he said.

The attorney general's office declined to comment on both Cable's suit and how it handles reimbursements, citing the pending legislation. Over the last decade, the attorney general's office has sought reimbursement from 11 inmates, according to data provided in the ACLU's public records request. None of those were in response to lawsuits, Klementowicz said.

He said one of the cases involved a 2005 murder-for-hire involving John Brooks, a millionaire businessman convicted of hiring three men to kidnap and kill a man he suspected of stealing from him. Klementowicz said he wasn't sure if the state sought reimbursement from Brooks or his son, Jesse, who was convicted of murder conspiracy in the case.

Former state Rep. Donna Sytek, a Salem Republican who sponsored New Hampshire's 1995 bill that led to the law change, said Wednesday her original proposal called for charging inmates co-pays for medical care they initiated and for the cost of property they damaged. The overall "cost of care" reimbursement language was added later, she said.

"This ability to go after somebody six years after they got out was added as a Senate amendment and the House went along with it," said Sytek, who later served as House Speaker. "I think the rationale at the time was most of these people don't have any money, but if a multi-millionaire somehow gets sent to prison, why should the taxpayers of the state have to pay for it?"

Almost all states allow inmates to be charged for room and board or medical fees during their incarceration, according to the Brennan Center for Justice, a nonpartisan law and policy institute at the NYU School of Law.

Illinois passed a similar law in 1982, giving the state the ability to sue prisoners and recover incarceration costs after serial killer John Wayne Gacy began selling paintings from death row. The state filed 11 "pay-to-stay" lawsuits in the first 10 months of 2015 alone, but the practice slowed after a Chicago Tribune story highlighted the controversial practice.

And in March, a federal judge ruled that Connecticut was wrong in keeping more than half of a prison inmate's $300,000 lawsuit award to pay the costs of his incarceration. Rashad Williams, who is serving a 30-year sentence for attempted murder and other crimes, won that lawsuit against prison officials after he was beaten by another inmate in 2010. The judge said officials improperly used a state law on recouping imprisonment costs to reduce the penalty.

-- Holly Ramer, Associated Press