September 2010 – New Hampshire Supreme Court
Joseph Hepworth

The New Hampshire Supreme Court has ruled in State v. Perfetto (issued 17 September 2010) that the trial court, as part of the terms of probation in a suspended sentence, could constitutionally restrict a defendant convicted of possession of child pornography from attending church services at which children would be present. Noting that remaining at liberty under a suspended sentence “is not a matter of right but a matter of grace,” the court ruled that it will “not strike down conditions of release, even if they implicate fundamental rights, if such conditions are reasonably related to the ends of rehabilitation and protection of the public from recidivism” (emphasis added). The court rejected the defendant’s argument that strict scrutiny — that there must be a compelling governmental interest to warrant restricting a probationer’s fundamental rights — should apply. Citing Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872 (1990), the court also noted “that the condition in this case does not directly infringe on the defendant’s free exercise of his religion: it is instead facially neutral and applies to the defendant’s conduct regardless of whether he is in a church or elsewhere. Under these circumstances, we see no reason to require the State to show a compelling government interest.” The court based its decision on the New Hampshire Constitution but reached the same result without further analysis because the United States Constitution “does not provide any greater protection than does the State Constitution with regard to the defendant’s claims of error.”