In 2013, Tony Hebert was convicted of manslaughter. He’s now serving a sentence of up to 30 years at the State Prison for Men in Concord.
But when he was sentenced, he remembers the judge made a remark that gave him hope for a shorter time in jail. “I think you’re a perfect candidate for the two-thirds," he recalls the judge saying.
The judge was referring to a New Hampshire law sometimes known as “the two-thirds rule.” It allows people incarcerated for a sentence of at least six years to have up to the last third of their sentence suspended—meaning, they get out early. But Hebert's request under the two-thirds rule was denied.
Now, a group of at least three incarcerated men, including Tony Hebert, is objecting to what they call the “arbitrary” way judges and other officials decide who can get out of prison early. This group is working to change the laws governing suspended sentencing.
There’s no state database that keeps track of who is approved for release under suspended sentencing and who is not, according to multiple people NHPR asked.
But incarcerated people NHPR interviewed pointed to stories of people who are approved for release, even if they have more severe charges, or spent less time in prison than Hebert had.
During his sentence, Hebert completed multiple classes and volunteer opportunities. He took courses on clarifying his life’s purpose, psychological first aid training, and parenting.
After nearly a decade in prison, he thought he had a good shot at release after taking all those courses. He thinks incarcerated people’s work toward rehabilitation should factor into a judge’s decision to grant a suspended sentence.
"Your volunteerism should definitely matter. How much effort you’re putting into trying to make this place a better place," Hebert says.
But Hebert’s effort to get suspended sentencing was still rejected — without a hearing. In her decision, Hillsborough Superior Court Judge Diane Nicolosi said Hebert is “a good model of what corrections would hope to achieve.”
But because of the nature of his crime, Judge Nicolosi said “punishment and general deterrence must be seen as weightier factors than rehabilitation.”
The law behind the two-thirds rule, or what’s known as a motion to suspend, is short. The words “punishment,” “deterrence” or “rehabilitation” aren’t even in it, which leaves a lot of discretion to judges.
Attorney Donna Brown represented Hebert. She says she's done a lot of motions to suspend sentences. She's told previous clients those applications can be tough.
“If you’re a murderer or sexual assault, if you want to try, fine, but your chances are almost nil,” she says.
She says at hearings for the two-thirds rule, the Attorney General’s office (which typically prosecutes murder cases) usually rehashes the details of the crime.
Brown says that isn’t the point of the hearing. The point, she says, is to determine if prison rehabilitation programs have had a positive effect.
“So it’s always very frustrating to me when the Attorney General’s office says ‘Hey, we want to ignore all the stuff they did in prison, we want to go back to the day he was sentenced and we’re gonna stay there,'” Brown says.
Assistant Attorney General Jeffrey Strelzin’s office handles murder cases in New Hampshire. He says an incarcerated person’s whole story should come out at these hearings. He says judges need to consider the crime itself, the appropriateness of the sentence, behavior in prison, whether remorse is shown and how the victim’s family members feel.
“The vast majority of the victim’s family members that we deal with do not have very charitable feelings toward those who killed their loved ones," Strelzin says.
Strelzin says judges do sometimes approve motions to suspend for people convicted of murder, but it’s rare that the Attorney General’s office would support their approval.
Chris Slayback is incarcerated in Concord. He’s one of several men there working on the bill that would turn the focus of these two-thirds hearings towards choices made inside prison and away from the crime.
“The nature of the crime will never ever change, but the nature of the person will,” Slayback says. “The person themselves who committed the crime — they can change themselves. They can immerse themselves in the programming and want to be rehabilitated and actually achieve that," he says.
Slayback says the two-thirds rule should be more like other laws that offer clearly defined rewards for achievements in prison. For example, under the earned time credit law, incarcerated people could have 180 days taken off their sentence for earning a college degree.
He says the two-thirds rule needs a similar codified incentive.
“If I were on the street, I would rather have somebody who was engaged in the rehabilitative process be released early than someone who hasn’t done anything and then still gets released at their minimum,” Slayback says.
Tony Hebert says denials like his ripple through prison, especially due to his role as a mentor for other incarcerated people.
If someone like him — someone a judge called “a good model of what corrections would hope to achieve” can’t shorten his sentence — then Hebert wonders who can.
Hebert says it’s been hard to convince his mentees that classes and other rehabilitative efforts are still worth completing after his petition failed. The judge did say Hebert could apply to suspend his sentence again in 2023. By then, he’ll have served about a dozen years.
