The Republican-controlled Executive Council has stalled a $5.5 million request to fund legal defense for low-income New Hampshire residents, pointing to what they said were a lack of safeguards in the program.
Under the U.S. and New Hampshire Constitutions, people who are facing possible jail sentences are required to be afforded legal representation if they can’t pay for a lawyer themselves. The state also provides lawyers in juvenile delinquency cases, and child abuse and neglect proceedings. Starting next year, the state will also assign lawyers to children who have been removed from their homes as part of abuse or neglect proceedings.
The price tag for those services for the year is expected to run more than $7.5 million, well above the $2 million included in the latest state budget.
But during Wednesday’s Executive Council meeting, a request to dip into the state treasury to make up the shortfall was tabled over concerns that the New Hampshire Judicial Branch has no system in place to ensure those who are provided lawyers for free don’t have the means to pay for those services themselves.
“I feel like I'm just throwing away $5 million in tax payers [money] with no one doing any checks,” said Councilor John Stephen. “And I don’t like it.”
Defendants who are facing possible jail time complete financial affidavits if they request legal representation. While there are circumstances when those affidavits may be scrutinized, Chris Keating, the state’s top administrative judge, said that there are generally no follow up checks performed.
However, he said that doesn’t mean that people are exploiting the system.
“In my experience, I’ve seen few instances of fraud in the representations made,” Keating told Stephen during the meeting. “But your point is a good one, we don’t have a system in place.”
The Executive Council tabled the funding proposal, but could vote on the request at its next meeting in two weeks.
Gov. Kelly Ayotte, who previously worked as a state prosecutor, said there may be ways that the Judicial Branch could begin performing means tests on indigent defendants, including using databases maintained by the Department of Health and Human Services or other state agencies that may have already reviewed a resident’s financial status when they applied for a different state program.
“It makes sense to me that there would be some verification, because we do that in every — to my knowledge — almost every context where you're receiving a state benefit,” Ayotte said following the hearing.
Rising costs
New Hampshire has struggled in recent years with the rising costs of indigent defense, as have other states, including Maine. According to the New Hampshire Judicial Council, which oversees the program, there are currently about 250 defendants in New Hampshire who haven’t yet been assigned a lawyer, including 80 who are currently incarcerated.
New Hampshire Public Defender, an independent non-profit, handles the bulk of indigent defense cases in the state. But the group recently hired 10 fewer lawyers than planned, citing budget uncertainties and other constraints.
Lawyers in private practice can also take on cases involving defendants who lack the means to pay, and receive a set fee from the state. To help entice more lawyers to participate, the state recently increased those fees, but the system is still in desperate need for more attorneys.
In the past, the state has attempted to collect money from people who were provided with a lawyer after their cases were resolved, even when they were found not guilty. But that effort was recently suspended because of how few people were able to pay.
“We were spending more to collect money than we were collecting, which is stupid,” said Charlie Arlinghaus, commissioner of the agency that oversaw the collection effort.
