Report: NH’s Indigent Advocacy System Lacks Funding, Oversight

A new report says the system New Hampshire uses to provide attorneys to low-income defendants is struggling with a lack of funding and oversight. But those involved in the system say it’s not clear that the recommendations put forward in the new report would necessarily lead to better legal representation for indigent clients.

The report was commissioned by the New Hampshire Judicial Council — the state agency that oversees indigent advocacy — and authored by the Sixth Amendment Center, a Boston-based nonprofit. He took a broad look at the structure of New Hampshire’s indigent defense system.

“New Hampshire has many qualified, knowledgeable, and passionate defense attorneys who provide representation throughout the state,” the report said. “However, these lawyers are placed in an untenable position in which they are being asked to handle excessive workloads while being underpaid.”

The report comes as the COVID-19 pandemic has increased pressure on New Hampshire’s public defenders and other elements of its criminal justice system. According to the Judicial Council, more than 1,000 criminal cases are pending statewide because no attorney has been assigned to them.

Public defenders said the cases are also increasingly long and complexas attorneys are called upon to take on additional responsibilities, such as arranging drug treatment for clients and sifting through tons of body camera footage or cell phone data.

‘Thin stretch’

The report says the public health crisis has compounded pre-existing issues with New Hampshire’s indigent advocacy system. This includes what he describes as overworked public defenders, contracted private lawyers who are paid so little they are forced to cut corners, and a Judiciary Council with too few staff to provide strong oversight.

Even relatively minor charges can have a lasting impact on a person’s life, including loss of housing or job opportunities, Sixth Amendment Center executive director David Carroll told NHPR.

“If we don’t take the time to get it right, we will have big impacts on poor communities across the state,” he said.

In interviews, leaders of the Judicial Council and the New Hampshire Public Defender – a nonprofit organization that contracts with the state – acknowledged that the high caseload is an ongoing problem and highlighted measures that they’re already taking to fix it. But they took issue with other aspects of the report, including its criticisms of the structure of the Judicial Council.

“We just don’t have enough time to do all the work we need to do and give every client what they need because we’re overstretched and the workload is astronomical.”

A public defender, to the authors of the report

Sarah Rothman, executive director of the public defender, noted that the report does not document any specific instances in which a public defender provided inadequate representation.

“I think it shows, you know, we’re under pressure with our workload, but we’re still able to deliver this really high quality representation,” she said.

The Sixth Amendment Center report says public defenders in New Hampshire have faced increasing caseloads in recent years, often well above contractual limits that cap each attorney’s open cases at 70. By mid-2021, according to the report, some 75% of public defenders had workloads exceeding that. In March 2021, each solicitor in Dover reported having around 150 or more open cases.

The report says these workloads lead to staff burnout and sometimes force lawyers to cut back on their work for clients. Some public defenders said they still believe they provide effective representation, although many said they communicate less with clients or delay or limit research into the facts of their case.

A public defender told the report’s authors, “We just don’t have enough time to do all the work we need to do and give every client what they need because we’re overstretched and the load work is astronomical”.

In some cases, the public defender must recuse themselves from working on a particular case due to a conflict of interest, for example when they are already representing one of several co-defendants. In these cases, the state has contracts with private lawyers who receive a fee for each case they handle. But the report says these fees are too low to provide an effective defense and encourage lawyers to “do the bare minimum”.

Some contract attorneys told the report’s authors that they don’t always fully consider the discovery they receive from prosecutors and sometimes encourage their clients to plead guilty rather than go to trial.

“If you go to trial, in most cases you will lose as a business decision,” one lawyer said, according to the report.

The structure of the NH Judicial Council questioned

The report traces some of these issues to the structure of the Judicial Council, which has other functions and includes sitting judges, members of the legislature and a representative from the New Hampshire Attorney General’s office.

The report says membership poses a conflict of interest because it does not preclude oversight of the indigent defense system by state attorneys, the judiciary hearing its cases or lawmakers making decisions funds and enact criminal laws. (Although the council’s indigent advocacy subcommittee excludes such members, the report notes that it is not codified in any formal statute or rule.)

The report also revealed that the three-person staff of the Judicial Council is not enough to provide strong oversight or collect enough data on the workings of the indigent defense system.

“New Hampshire has a lot of structure from the outside,” Carroll said. “But when you start digging in, you realize no, there’s no real oversight of this system at the state level.”

The report suggests that because the Public Defender needs the board and other state officials to renew its contract every two years, it puts pressure on the organization to take on more cases and refrains from advocating systemic changes at the state level. Rothman of the Public Defender disputed this.

“Certainly, I don’t believe that the structure of the Judicial Council precludes the Public Defender from advocating for our funding, for example,” she said. “I think it’s the opposite. I think our relationship with the Judicial Council is crucial in advocating for our funding. »

The report recommends that New Hampshire form an independent indigent advocacy commission, which Carroll says is what the standards of the American Bar Association require. It also recommends banning the use of flat fees and increasing funding for state-level oversight.

According to Carroll, New Hampshire is the only state in the nation that contracts with a single private entity as its primary public defense service. He said it might be useful to consider whether this model or another would better serve the state, although that is beyond the scope of the report. In his view, what tends to work better is to make public defenders state government employees overseen by an independent commission.

“We need to keep pace with staffing, so that we can continue to provide that representation to people who deserve a lawyer – and deserve a lawyer as soon as possible after their arrest.”

Sarah Rothman, executive director of the New Hampshire Public Defender

But Sarah Blodgett, executive director of the Judicial Council, said the composition of the council is an asset – not a liability. Those relationships help the council get things done, she said, including securing additional state funding for public defense over the past year.

“We wouldn’t have gotten anything out of this funding without the support of the Chief Justice and the Department of Justice,” she said. “These are critical relationships. And I think the report really lacks an understanding of how we operate in New Hampshire. »

Blodgett and Nina Gardner, who chair the Judicial Council, added that they do not think increasing the council’s staff or data collection capabilities should be a priority. Their priority is to recruit and retain enough attorneys to handle the state’s indigent defense work.

They said the state had already begun devoting more resources to advocating for the indigent over the past year. This includes a pay raise for public defenders, funding to hire more experienced attorneys into the program, and covering some additional costs for contract attorneys.

The state also increased the hourly rate for private attorneys who are assigned cases that neither public defenders nor contract attorneys can handle, from $60 to $90 per hour. Gardner said it was the first time that rate had increased in decades.

Blodgett said the council’s next budget proposal calls for a $14.5 million increase, including more money for the public defender and $4 million to establish a secondary public defender program, which could reduce reliance on contract attorneys.

She said the full board will review the report’s recommendations and decide whether to make any changes in the coming months.

Rothman said the number of cases at the Public Defender began to decline, after some of its offices temporarily stopped accepting new cases.

According to Rothman, the central issue is not the structure or oversight capacity of the Judicial Council. It’s that the state needs more lawyers to represent indigent clients – and the money to hire them.

“We need to keep pace with staffing,” Rothman said, “so we can continue to provide that representation to people who deserve a lawyer — and deserve a lawyer as soon as possible after arrest.”

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