Jonathan P. Baird

It is strange to say it is great to see a new prison but in the case of the New Hampshire Women’s Prison, this statement rings true.

The prison, set to open in the next few months, will have vocational and educational programs and access to 24/7 healthcare services on site. There will be treatment for inmates with mental health and substance abuse problems. The programs and services will be comparable to what male inmates have had.

The story of how this prison came to be has not been told. While the Monitor editorial on March 28 justly praised Alan Linder and Elliott Berry, two New Hampshire Legal Assistance lawyers who worked on the class action lawsuit on behalf of the women state prisoners, the Monitor only got it partly right.

The saga of the New Hampshire Women’s Prison actually began in 1983, 35 years ago. It was then that Bertram Astles, a private attorney, and later New Hampshire Legal Assistance filed a class action claiming that the state of New Hampshire was violating the constitutional rights of women state prisoners to equal protection of the law.

Back in the early 1980’s, because there was no women’s state prison. New Hampshire was shipping women state prisoners to other states, including states as far away as Maryland, Colorado and South Carolina. Many of the women prisoners were held in prisons in Massachusetts, especially MCI-Framingham, while some landed in county jails in New Hampshire. Back then, Framingham was no picnic – it was hard time.

The women had no control where or when they would be sent away. If they stayed in New Hampshire in a county jail, it was basically solitary confinement. The counties offered nothing, not even outside exercise.

I had a unique vantage point. As a law student at Franklin Pierce Law Center (now UNH Law), I interned at New Hampshire Legal Assistance in 1983-84 and I helped out on the women’s prison case. I travelled to Massachusetts prisons to meet with and interview the New Hampshire women and I took their affidavits where they told their stories.

Being out-of-state, the women were far from their families and their lawyers. The distance made visits harder, rarer, and more expensive. Lack of communication and isolation contributed to depression. Clients who are out of jail often complain that it is hard to reach their lawyer on the phone but for these clients it was extremely difficult. Inmates could make only collect calls and most attorney offices would not accept them. Also, there was no confidentiality over the phone, which was monitored.

Many of the women were young mothers and they grieved the separation from their children whom the rarely if ever saw. The impact of a mother’s incarceration on children was not considered by state officials. I think it is safe to assume there were very negative developmental consequences for the children, cognitively, emotionally, and socially. It is entirely predictable that under such circumstances children would suffer significant psychological harm, a tally off all radar screens.

Conditions in the out-of-state jails were often terrible as the New Hampshire women were an after-thought. The women prisoners got none of the perks that in-state male prisoners typically received. There was no access to vocational training, no prison jobs or even access to a law library.

Women at in-state county jails had their own special hell. The county jails were not set up for long-term inmates and they had no programs or services for the women. If a vacancy opened in an out-of-state prison, the women would get shipped out with no notice.

Back then, there were 22 women state prisoners. To get to be a state prisoner, you had to be serving at least a year behind bars. Probably part of the state’s neglect was the low number of women prisoners at the time. In addition to straight-up sexism, the numbers dictated that women prisoners were a low priority. Now there are approximately 130 women state prisoners.

During my internship, I also witnessed the battle over the halfway house. Unlike the men who had a halfway house next to the state prison, the women had no facility to ease their transition back into society.

The halfway house was not just a way station next to the prison. It was integral to the path for parole. The vocational and educational programs were not just filling time. Without a job and a place to live, the women brought nothing to the parole board. They needed those programs and the halfway house to show progress since it was a ticket out. Without the halfway house, women were stuck.

While now the state’s failure to have a halfway house looks like rank sex discrimination, at the time the case was no slam dunk. The morning of the preliminary injunction hearing in federal court in Concord, none of the women prisoners showed up to testify. There was a problem with the orders of transport. The attorney general’s office ranted like the case was frivolous.

Fortunately, the plaintiffs had some aces up their sleeve. Legal Assistance had an awesome trial prison expert, Edyth Flynn, who testified persuasively and exposed the state. Legal Assistance also had excellent trial counsel.

In the early days of the case, along with Alan Linder, plaintiffs’ counsel included Alice Schierberl, a Portsmouth-based Legal Assistance lawyer. Both Alan and Alice were passionate and effective advocates.

I remember driving to Portsmouth with Alan to meet Alice and to prepare for the preliminary injunction hearing. Alan had a list of about 25 items he had prepared. His meticulous and thorough preparation was an education in good lawyering. Alice went on to do a beautiful job on her direct examination of our expert, Edyth Flynn.

Who the judge was mattered. The plaintiffs were very fortunate to have Federal Court Judge Martin Loughlin hear the case. Judge Loughlin was a down-to-earth, compassionate man who had a soft spot for the down-and-out. Even without the plaintiffs themselves testifying at the preliminary injunction hearing, he ruled in their favor. Later, in the trial on the merits, he also ruled for the plaintiffs.

It was Judge Loughlin’s initial finding back in 1987 that the state violated equal protection that tipped the balance and moved the case forward. Judge Loughlin ordered the construction of a permanent, in-state prison for plaintiffs no later than July 1, 1989. Although that 1989 date was not to be, Judge Loughlin’s role was critical. His ruling created the inevitability of an in-state prison for women.

Instead of building a new prison, the state stuffed women prisoners into the former Hillsborough County House of Correction in Goffstown. It became available when Valley Street Jail in Manchester opened in 1989. The cramped and antiquated Goffstown facility was never intended for long-term use as a prison. There was almost no space available for basic vocational training or mental health treatment. Also, space was lacking for even family visitation.

During the years after 1989, report after report was issued about the inadequacies of the Goffstown facility, including from the United States Commission on Civil Rights. A 2009 report of the Interagency Coordinating Council for Women Offenders shockingly reported that only two women had received high school diplomas during the two decades the Goffstown women’s prison had been in operation.

This abysmal record forced New Hampshire Legal Assistance to file a second class action in 2012 because the state failed to live up to its obligations.

In considering the history, I blame New Hampshire state government, particularly the Legislature, for its failure to spend money on behalf of the women prisoners. The fact that women prisoners were a weak and politically unsympathetic constituency made it easier to dump on them.

The Legislature’s procrastination and refusal to fund was not just a moral failure. It reflected blatant sexism and disrespect for the law. Judge Loughlin’s order was ignored, causing untold harm to the women prisoners. No one has to answer for that and there is no accounting for the needless suffering that happened as a result.

Amazingly, we are now three decades beyond Judge Loughlin’s ruling and the question still must be asked: why did it take the state so long to do the right thing?