Every two years, voters in New Hampshire get to weigh in on their next county attorney. It’s an elected position that doesn’t get a lot of attention, but county attorneys quietly hold tremendous power over key aspects of the state’s criminal justice system.
But advocates for racial equity and criminal justice reform are rethinking the role of county attorneys in New Hampshire.
Peter Heed was elected Cheshire County Attorney six times, but he says many friends and neighbors still had no idea what he actually did.
“Every movie or TV show calls it the DA,” Heed said. “So people know what a DA is, but very few people actually when they go to the polls understand what a county attorney is.”
County attorneys are prosecutors who oversee some of the most important cases, including most felonies, in New Hampshire’s justice system.
Police departments bring their criminal investigations to the county attorney, who then decides if there’s enough evidence to charge someone with a crime.
“Depending on the seriousness of a case, sometimes prosecutors are involved as much as going to crime scenes when it’s an important crime scene and helping to supervise the investigation, and obtaining search warrants and those things,” Heed said.
County attorneys and their staff also determine which charges should be filed. And if a defendant is convicted, the county attorney will give their recommendation for sentencing or help determine a plea bargain.
Given this central role in the justice system, UNH Law professor Albert Scherr says traditionally, candidates running for county attorney try to paint themselves as tough on crime, and as advocates for victims. Usually, the campaigns are less about partisan politics, and more about who’s going to better support cops.
“It’s very police focused, very law and order focused in the old sense of the term,” Scherr said.
But this election season, some county attorney candidates are taking a different approach, like Robin Davis, a Democrat running for re-election in Merrimack County.
“The criminal justice system is on the cusp of reform,” said Davis in a video on her Facebook campaign page. “We’re really talking about the rehabilitative portion of criminal prosecution and how we push people forward. We’re also talking about social justice and police reform.”
Racial justice and police reform are on many voters’ minds, both in New Hampshire and nationwide, following the killing of George Floyd by Minneapolis Police.
Though, not everyone running for county attorney this year says the system needs to be reformed. In a survey of candidates by the ACLU of New Hampshire, some were vague in their answers about whether racism plays a role in the criminal justice system. Others flat out denied systemic racism exists in New Hampshire.
Joseph Lascaze, who works on criminal justice reform for the ACLU, says the risk of bias is real at the county attorney level, given the discretion prosecutors have in filing cases.
“When a prosecutor looks over a file in the case, that’s all it is to them. It’s just a file. It’s a case,” Lascaze said. “There isn’t that humanizing aspect of them getting to know that person. So they’re making decisions based off that, and implicit bias does come into play. And you can see it in numbers that are at the New Hampshire State Prison.”
An NHPR investigation in 2016 found that Black and Hispanic people are arrested and incarcerated at higher rates than white people in New Hampshire.
In Hillsborough County, the most populous and diverse county in the state, Black people are nearly 6 times more likely to be in jail than white people.
Professor Albert Scherr says prosecutors are part of the reason for these disparities.
“It’s most often the case that judges will follow some version of the prosecutor’s recommendation for sentencing,” Scherr said. “So the disproportionate numbers in prisons and jails is very much a function of the disproportionate sentence recommendations relating to people of color by prosecutors.”
Advocates like Joseph Lascaze say they’d like to see county attorneys attend implicit bias training regularly and keep better track of demographic data relating to their cases, as a way to hold them accountable.
Another way county attorneys can be held accountable, of course, is at the ballot box, and voters will get that chance next week.