Indigent defense is recovering from crisis but still ‘under a lot of stress’

By: - November 2, 2023 5:00 am
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Indigent defense programs continue to face challenges in New Hampshire. (Getty Images)

The state’s safety net for criminal defendants who can’t afford an attorney is no longer in crisis. Pay increases have slowed attorney resignations. Fewer people are waiting for a lawyer, and the wait is shorter. The Public Defender Program has stopped limiting new intakes and has even expanded some services. 

However, indigent defense programs continue to face challenges. Even as the state has increased its investments, funding for low-income defendants is falling short of need, according to people overseeing indigent defense. Under the U.S. Constitution, the state must provide attorneys to criminal defendants who cannot afford one.

Sarah Rothman, executive director of the Public Defender Program, said she needs 12 additional attorneys to reach her goal of 145, not a small number given that she’s lost about 20 each of the last two fiscal years. 

Richard Samdperil, who until recently oversaw the Judicial Council, which finds lawyers for clients Rothman’s team can’t represent, said the council needs more attorneys too. In the past five years, the number of lawyers or firms willing to sign indigent defense contracts has dropped by 45 percent, he said. and those who take contracts are agreeing to take fewer cases.

“As a system, it’s under a lot of stress,” Samdperil said. “The Public Defender (Program) has done a remarkable job of recovering from where it was 18 months ago, but the continued stress on the indigent defense system is of great concern.”

Eighteen months ago, the Public Defender Program was trying to rebound from a mass exodus, where nearly 50 attorneys resigned within two years. For the first time in its 25-year history, it had restricted intakes, cutting its cases from nearly 28,000 in 2019 to about 14,800 in 2022. Almost 180 criminal defendants were facing incarceration with no one to represent them in 2022.

The Judicial Council provides funding for the indigent defense programs in the state, including the Public Defender Program; New Hampshire Legal Assistance; CASA of New Hampshire, which trains and supervises volunteers to serve as advocates for abused and neglected children; and the attorneys who take cases the Public Defender Program can’t because of conflicts of interest.

Samdperil said the council didn’t have enough attorneys to absorb hundreds of new unrepresented clients after the Public Defender Program restricted intakes. The situation was so dire that the state Supreme Court appointed a Criminal Defense Task Force to explore solutions. The task force began recruiting experienced private attorneys to take on indigent clients at about $60 an hour, a fraction of the $350 to $450 hourly rate their firms typically charge.

Right now we are just treading water,” Supreme Court Justice Patrick Donovan, who headed up the court’s Criminal Defense Task Force, told the Bulletin in July 2022. 

The situation began looking a bit less dire this year.

Judicial justice advocates succeeded in persuading the state to invest more in indigent defense. Public defenders got pay raises and permission to join the state’s health insurance, which Rothman said is cheaper and more comprehensive than their prior plan. The office has added staff to help clients find court-ordered treatment and assistance with insurance and housing, taking that task off attorneys and expanding it.

That’s helped considerably with recruitment, Rothman said, but high caseloads and the potential to earn more elsewhere still make positions hard to fill.

The state increased the hourly rate for private attorneys too, from $60 to $90 an hour for most cases and $125 for homicides and serious felonies. (That is still lower than the $158 an hour the federal government pays lawyers to take on federal indigent cases.)

But the Judicial Council saw its $5 million budget request for assigned counsel, who also represent indigent criminal defendants and parents in abuse and neglect cases, cut to $3 million.

By the end of the first quarter of the 2024 fiscal year, the council had already spent $1 million. Samdperil said he expects the council will ask the Joint Legislative Fiscal Committee for more money in January or soon after. 

The Judicial Council was also denied its request for an alternative public defender program that Samdperil believes presents the best chance of shoring up indigent defense in New Hampshire. The council must hire private attorneys for the approximately 15 percent of indigent cases the Public Defender Program can’t take because of conflicts of interest. Creating what would be essentially a backup public defender program with staff attorneys would replace the current unpredictable process of hiring private attorneys via limited contracts or for individual cases, as their schedules allowed.

It’s become harder to recruit private attorneys, Samdperil said. In the last five years, the number of contracted attorneys has gone from 34 to 19, largely because of the pay and workload, he said. 

A case that may have taken a few days to prepare a few years ago can now take much longer because of an increase in digital evidence to review, such as social media and video surveillance. The more time attorneys spend on contract cases, the less time they have for clients who are paying their firms’ standard rates.

The rate increase “hasn’t resulted in this massive expression of interest,” Samdperil said.  

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Annmarie Timmins
Annmarie Timmins

Senior reporter Annmarie Timmins is a New Hampshire native who covered state government, courts, and social justice issues for the Concord Monitor for 25 years. During her time with the Monitor, she won a Nieman Fellowship to study journalism and mental health courts at Harvard for a year. She has taught journalism at the University of New Hampshire and writing at the Nackey S. Loeb School of Communications. Email: [email protected]

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