CONCORD, N.H. — The Executive Council is holding up $5.5 million of funding for indigent defense attorneys in New Hampshire after councilors questioned whether courts are adequately scrutinizing defendants’ claimed financial status.
In a 3-2 vote Wednesday, councilors moved to table the New Hampshire Judicial Council’s request for extra funding, which would come from the state’s General Fund.
The Judicial Council is asking to increase its current two-year budget from $2.1 million to $7.6 million, more than tripling it. In an explanation to the Executive Council, the Judicial Council said the costs have risen due to more hearings after the end of the “Felonies First” program; increased complexity of cases; a jump in the billing rate for assigned counsel; difficulty hiring dedicated public defenders, requiring more expensive outside counsel; and other factors.
According to state law, the Judicial Council is required to request additional funding from the Joint Legislative Fiscal Committee and the Executive Council if its expenses exceed its budget. The Fiscal Committee approved the $5.5 million request earlier in October.
But on Wednesday, Councilor John Stephen, a Manchester Republican, said he’s concerned that courts are not sufficiently examining defendants’ claims of being unable to afford a lawyer in the first place.
“We’re not even checking to see if these individuals have assets, have income,” he said. “I don’t know what we’re doing.”
A spokesperson for the Judicial Branch was not available to comment Wednesday.
Stephen, a former New Hampshire assistant attorney general and former deputy commissioner for the Department of Safety, said he supports indigent defense funding and commends the Judicial Council. But he asked that Supreme Court Chief Justice Gordon MacDonald sit down with the Executive Council to discuss improvements to verification.
Republican Councilors Joe Kenney, of Wakefield, and Dave Wheeler, of Milford, joined Stephen in voting to table the funding.
Speaking to reporters after the meeting, Gov. Kelly Ayotte, the former state attorney general, said she appreciates public defenders and that they “have an important constitutional role in our justice system.”
But she said she was open to finding ways to better review indigent defendants.
“The idea of looking at whether there’s ways to put processes in place to make sure that the verification of whether someone’s indigent is done properly: that’s a legitimate issue to look into,” Ayotte said.
Lebanon Councilor Karen Liot Hill, the sole Democrat on the council, said she understood Stephen’s concerns but argued the council should not hold up funding. The New Hampshire Constitution guarantees all defendants in the state a right to representation.
“I don’t think tabling is necessary to achieve some of the policy issues that Councilor Stephen is concerned with, and it potentially opens the state to liability related to this constitutional obligation that we owe to indigent (people) in New Hampshire,” she said.
In his explanation for the funding increase, Jay Buckey, the executive director of the Judicial Council, wrote the end of the “Felonies First” program, in which felony cases were diverted to superior court, means there are more hearings at the circuit court level, increasing the need for defense.
He also wrote the cost increase has been driven by “particularly serious” defense cases, such as a murder trials and cases related to sexual abuse at the state’s Youth Detention Center.
The recent tightening in state bail laws under House Bill 592 will likely raise the number of people held in jail before their trial, putting more burdens on public defenders, he said.
Meanwhile, changes in state statutes have required assigned counsel in all juvenile delinquency cases, as opposed to “contract counsel,” raising the case load. A law taking effect in January will mandate court-appointed attorneys for children in placement scenarios, Buckey noted.
The Legislature has also increased the amount that assigned counsel gets paid; as of January 2025, counsel will receive $125 per hour in standard cases and $150 for major crimes. “This change was supported by the Judicial Council to maintain the number of attorneys willing to take indigent defense cases,” Buckey wrote.
Exacerbating all of those costs is the hiring difficulty by New Hampshire Public Defenders, the private organization that assists in many cases. “Due to budget uncertainty and constraints, NHPD was unable to hire the full number of attorneys it planned to (hiring 9 instead of 19), which led to ongoing attorney shortages at certain offices,” Buckey wrote.
And there are not enough attorneys willing to accept contracts directly with the Judicial Council, he added.
In New Hampshire, a defendant who is requesting an attorney be provided to them must fill out an affidavit before the court asserting that they are unable to afford representation.
After a change made by House and Senate Democrats in the 2019 budget trailer bill, House Bill 2, the court has the power to conduct an “ability-to-pay” hearing, at its discretion. If the court finds the defendant can pay some or all of the fees, it can order the defendant to do so.
Stephen acknowledged that the Judicial Council is not responsible for investigating defendants’ ability to pay, but he said the tabling motion would allow for the conversation with the Judicial Branch.
“I feel like I’m just throwing away $5 million in taxpayer (money) and no one’s doing any checks,” Stephen said.
The next opportunity for the council to pass the $5.5 million funding request is Nov. 12.