In N.H., County Prosecutors Wield Power, But Often Run Unopposed
They’re among the most powerful actors in New Hampshire’s criminal justice system, deciding which charges to file, making bail recommendations and shaping the plea negotiations that determine the sentences in most criminal cases.
And in much of the state, they’re running unopposed.
In seven of the state’s 10 counties, the incumbent county attorney — the chief local prosecutor, what other states call a district attorney — has not drawn a challenger this year.
“There’s not a lot of interest, frankly, in county attorney races,” said Strafford County Attorney Tom Velardi, a Democrat, who is also president of a statewide county prosecutors’ group. “We’re pretty close to the bottom of ballots.”
County attorneys and their staffs prosecute most felony criminal cases in New Hampshire, and sometimes misdemeanors as well. The state Constitution makes them accountable to the voters, and they stand for election every two years.
But most of the time, voters don’t have much choice.
Of the 100 county attorney races between 2000 and 2018, just 25 had more than one candidate on the ballot during the general election, according to an elections database published by NHPR. Another four or five had a contested primary but no general election.
In some counties, it’s been more than a decade since a county attorney faced an election opponent. Cheshire County’s last contested race was in 2006. After a late withdrawal by the sitting county attorney, former officeholder Peter Heed won both major-party primaries as a write-in and cruised to election in the general with 84 percent of the vote.
Sullivan County Attorney Marc Hathaway was elected in 1986. He has not faced a challenger since.
“I would like to think it’s because we’ve done a good job,” Hathaway, a Republican, said. “But I can’t speak for what other people may or may not do.”
‘A powerful position’
Prosecutors wield a great deal of power over criminal cases. After police departments investigate and make arrests, prosecutors decide whether to move forward with those cases.
Importantly, they also determine which charges to file. The facts of the case — as reported by police — are the basis for that decision. But an action can violate multiple provisions of the criminal code. A prosecutor has wide latitude to charge the most serious possible violation, a lesser offense or several separate charges, each outlining a different “alternative theory.”
Prosecutors also have the authority to include — or omit — factors that enhance a charge’s severity, like prior convictions.
“It’s a very, very powerful position,” said Albert “Buzz” Scherr, a professor at the UNH Franklin Pierce School of Law. “It can be a source of abuse, and it can be a source of justice.”
The vast majority of cases in New Hampshire are resolved through plea bargaining, rather than trials. Charging decisions give prosecutors “a lot of leverage” in that process, said Alex Parsons, the managing attorney of the Keene public defender’s office.
Drug cases are one example, he said. Someone caught with a handful of unprescribed OxyContin pills could be charged with unauthorized possession of a prescription drug, which is a misdemeanor, or possession of a controlled drug, a felony.
Ultimately, prosecutors will usually bump that down to a misdemeanor as part of a plea deal. But the risk of a felony conviction — which carries the potential for prison time and can hinder later attempts to find housing or a job — can put pressure on defendants to plead guilty instead of taking their chances at trial, Parsons said.
“That’s kind of the going rate,” Parsons said of the misdemeanor charge. “That’s what’s fair and right. But prosecutors will often bring that as a felony. And they don’t necessarily want a felony conviction, but that will make sure that they get the misdemeanor conviction.”
Sentences are typically hammered out in negotiations outside the courtroom, though a judge must sign off at the end, said Steven Briden, the deputy county attorney in Carroll County and a candidate for Rockingham County attorney.
“A prosecutor has basically unlimited discretion to go to defense counsel and say, ‘This is a case that requires no time,’ ‘This is a case that requires suspended time’ or ‘This is a case where I’m not gonna agree to any plea resolution unless your client is willing to go to prison,’ ” Briden said.
County attorneys noted that their discretion is not unlimited. Defense attorneys, judges, police departments and, ultimately, voters can push back against decisions they feel go too far.
“Let’s say somebody came into that office and said, ‘I’m going to mandate at least a year in jail for every simple possession case,’ ” said D. Chris McLaughlin, the Cheshire County attorney. “The defense bar is gonna say, ‘Well then we’re gonna have a lot of trials.’ ”
Nationally, district attorney elections have received more attention in the past half-decade, with reform-minded prosecutors winning in Philadelphia, Chicago, Boston and elsewhere.
But most races are foregone conclusions, especially in smaller communities. A report this year by a University of North Carolina law professor looked at more than 2,300 jurisdictions nationwide; fewer than 700 had contested races in the election cycle studied.
In New Hampshire, prosecutors and other observers gave various reasons for that. You have to be an attorney to do the job; that limits the pool of potential candidates, especially in more rural counties. The pay’s not great. It’s not traditionally a stepping stone to higher office. The public may not pay much attention, or even really know what a county attorney does. And people may simply be happy with how things are going.
“Running unopposed or getting re-elected through a contested race is a really good endorsement that what you’re doing is the right thing,” said Velardi, the Strafford County attorney.
McLaughlin echoed that. A Westmoreland Democrat, he was appointed Cheshire County attorney on an interim basis in 2013 to succeed Heed. He has been elected without opposition since 2014 — a would-be challenger was bounced from the ballot in 2016 because he wasn’t a lawyer — and faces none this year.
“I think if someone was in the position and was not doing a good job, that there would be competition for the position,” he said. “I think it is the type of position where you have to build relationships with law enforcement, you build relationships with the local bar, and people, they get a sense of you.”
Races tend to be more competitive in larger counties. The state’s three most populous counties, Hillsborough, Rockingham and Merrimack, account for most of the contested elections in the past 20 years — and all three of them this year.
Challengers in those races gave different reasons for why they decided to run. Some criticized what they saw as poor leadership by incumbents.
“To me it appeared that the county attorney’s office leadership was struggling,” said John Coughlin, a Republican running in Hillsborough County, citing the rocky first term of Democratic County Attorney Michael Conlon. A former judge and county attorney, Coughlin said that prompted him to run for his old office this year. “I think there’s a real need for someone with some experience.”
Others said they want to implement a different approach to criminal justice. Briden, a Democrat challenging Rockingham County Attorney Pat Conway, a Republican, said he would focus more on alternatives to incarceration for nonviolent crimes. He argued that treatment and rehabilitation make society safer in the long run by reducing recidivism.
Briden said he’d like to see more contested county attorney races.
“People should always be re-evaluating what they think,” he said. “And one of the best ways in our electoral system to do that is to have a challenger talking about how things could be different.”