MANCHESTER, NH – New Hampshire’s Public Defender’s Offices (PDO) across the state are confronting “dangerously high caseloads,” according to a report issued this week by the Criminal Defense Task Force.
In September, Chief Justice Gordon MacDonald of the New Hampshire Supreme Court asked Associate Justice Patrick Donovan to form and chair a task force to assess the “current crisis facing indigent defendants in the New Hampshire criminal justice system.”
According to the report, about 2,000 criminal cases pending in circuit courts need appointed counsel, yet several PDO have already reached maximum capacity and cannot accept additional cases. The PDO have lost 28 attorneys in the last 14 months due, in large part, to “crushing caseloads. In addition, the Judicial Council has more than 118 new cases requiring appointed counsel. Another 300 cases need to be re-assigned because two contract attorneys have left the program.”
Robin Melone, president of the New Hampshire Association of Criminal Defense Lawyers and a task force member, said her understanding is the public defenders are down about one-third of their full complement.
She said coming into the pandemic, case numbers were high, especially in some of the larger counties.
“When COVID happened and things started shutting down in March 2020, while the courts remained open, we were not moving cases as quickly as we were in pre-pandemic times,” she said.
For instance, she said a low-level drug case previously was open for five to six months, now it is 12 to 18 months.
“It’s a long time,” she said. “Cases are staying open at the same time that more cases are coming in. Think of it as a faucet. The faucet never turned off during COVID. Arrests kept happening and new cases were added to the docket. The combination of those two things made case numbers explode.”
The contract the public defender has with the state caps cases at 70 per attorney.
“Frankly, I don’t ever remember that being that low,” said Melone, who previously was a public defender. “I don’t recall ever carrying a caseload of 70 cases. I remember when I left I had 98 cases.”
She thinks “70” is an aspiration. She said currently, N.H. public defenders have 100 cases or more.
The result is that some public defender offices are at full capacity and have informed the state they cannot accept any more cases. This week, she said, offices in Dover and Nashua stopped accepting cases.
“Throughout the pandemic, there have been rolling closures at various offices,” she said. “This is unprecedented.”
Prior to the pandemic, there was only one time in the past 20 years that happened, she said.
“We can’t be effective if we are representing 120 people,” Melone said.
Public defenders, she said, handle 85 percent of the indigent defendant cases in the state, which she believes is “perhaps manageable. “
For the past year, however, she said that number has been substantially larger because of the backlog.
The Judicial Council, which provides funding for the Indigent Defense Fund, the Contract Attorney Program and PDO, among others has had to rely on assigned counsel and contract attorneys to take on more cases.
The private bar, she said, has some of the same issues as the public defenders.
“Our cases aren’t closing as quickly, our cases are higher than typical and COVID makes it challenging to find attorneys willing to represent incarcerated defendants,” she said.
In preparing for court, defense attorneys will meet with their incarcerated clients, a population that is at high risk for COVID, at jails or prisons. Presently, the Valley Street jail is in the midst of an outbreak with more than half the inmates testing positive for the virus.
The low rate of compensation paid contract attorneys is also an issue.
Melone said a recent survey found that New Hampshire lawyers, depending on the type of work, earn between $250 to $500 an hour.
The state pays contract attorneys $60 an hour for felony cases and $100 an hour for major felonies, i.e., homicides, first-degree assault, sexual assaults. For misdemeanors, an attorney is paid a flat fee of $260 no matter how many times they have to appear in court.
“People do not take these cases to make money,” Melone said. “Attorneys agree to take contract work because they are committed to providing quality representation. The work is a calling and an obligation we have. We feel passionate about the law.”
She said another problem is that many of the attorneys who are leaving the public defender program are the more experienced ones, not the new attorneys. They are the ones who can handle the bigger cases. A first-year attorney, she said, is not going to be assigned a first-degree assault case with major injury.
Melon said when a public defender leaves an office, their cases are distributed among the remaining attorneys. A large office like Manchester may be able to absorb that. However, Melone said in offices where there are only five attorneys, it means the remaining four will take on another 25 cases.
In its report, the task force said additional funding is needed for contract attorneys. Funds from the Governor’s Office for Emergency Relief and Recovery (GOFERR) were approved to reimburse contact attorneys for past administrative costs associated with their increased caseloads. The Judicial Council is seeking $2,066,000 in American Rescue Plan Act of 2021 funding for up to 10 new, temporary attorneys to assist with current caseload challenges, additional temporary assistance for contract attorneys and criminal defense training.
The task force also believes a request should be made to the Legislature concerning aligning PDO attorneys salaries with those of their counterparts through the rest of the criminal justice field.
The task force is also calling for a one-week pause in criminal case trials to allow criminal practitioners times to properly evaluate their caseloads.
They also recommend that judges consider making personal overtures by way of an email or letter to criminal practitioners in their counties to accept contract and/or pro bono criminal cases.
Melone said she is grateful for the Supreme Court calling attention to the issue and “I am hopeful that that attention will produce some relief.”
