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N.H. Supreme Court Rules in Favor of Defendants Who Can't Repay Legal Fees

Dan Tuohy for NHPR
The New Hampshire Supreme Court building in Concord

Indigent defendants who fail to pay fees assessed for their public defender cannot be jailed without adequate due process, including representation by an attorney. That’s according to an unanimous ruling released on Tuesday by the Supreme Court of New Hampshire in a case involving an indigent defendant who failed to repay approximately $450 owed to the state.

Legal advocates, including the ACLU of New Hampshire and N.H. Legal Assistance, filed an amicus brief in the case arguing that Senate Bill 200, which was signed into law by Gov. Chris Sununu in 2017, protected indigent defendants from being jailed for failure to pay certain fines, including for lapsed repayments for legal represenation.

“It’s an economic justice issue,” says UNH law professor Albert “Buzz” Scherr. “Are we really going to continue to demand things of poor people just because they’re poor?”

In New Hampshire, a person charged with a crime who can’t afford an attorney are generally appointed a public defender. But in the fine print, by accepting a public defender, the defendant is also accepting that he or she may receive a bill to cover a share of the costs.

If the defendant fails to pay those assessed fees, the Office of Cost Containment, a state entity within the N.H. Department of Administrative Services can attempt to recoup, even if the defendant is found not guilty of the original crime.

If the OCC is unsuccessful in collecting fees through a repayment schedule, the agency has the ability to ask the courts to issue a bench warrant. According to Scherr, the Supreme Court’s ruling means the defendant must be represented by a lawyer who can advocate for their client. Judges must also rule on if the defendant has the ability to pay the fine.

“It’s one step in the process of holding the OCC accountable for practices that have not been looked closely at in decades,” says Scherr.

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