The state of New Hampshire recently upped the amount that lawyers can get paid when they take on cases where defendants can’t afford an attorney. The hourly rate for assigned counsel increased from $90 to $125 for most cases, and from $125 to $150 for major crimes, this January.
The pay increases are just one action to try and fix what is a longstanding problem: a lack of attorneys willing to take these cases.
An audit of the Judicial Council found that in March 2024, 20 to 40 incarcerated defendants were awaiting court services in New Hampshire, along with 100 to 125 non-incarcerated defendants and around ten juveniles.
The state’s Judicial Council is the agency essentially in charge of managing the system of indigent defense. As New Hampshire lawmakers try to pass the next state budget, the agency is hoping for funding that’ll meet the state’s demand for indigent defense services.
Jay Buckey leads New Hampshire’s Judicial Council and he joined NHPR’s All Things Considered host Julia Furukawa to talk about the shortage of indigent defense attorneys in the state.
Transcript
What is the extent of the shortage of lawyers taking these cases, and when did it first emerge?
The real difficulty in obtaining lawyers for indigent defense cases really goes county by county, depending on a few things—depending on the number of lawyers in that county [and] depending on where the public defenders [are] at in terms of capacity. In terms of when it started, I would say at least as far back as COVID. That's when there really was a spike in the need for people to have lawyers and a real shortage of lawyers willing to accept these cases. So it's been with us here for several years.
Where geographically is it most acute?
Generally the most rural counties. It's something that's been referred to by the bar association and others as, sort of as, legal deserts. There's been the most long-standing shortages in counties like Grafton, Sullivan, Coos.
Does that mean that there are people in jail as we speak who are supposed to have lawyers under the Constitution, but currently don't?
There are people in New Hampshire currently awaiting counsel, that's correct.
New Hampshire, like a lot of other states, gives money to a private nonprofit—in this case, it's the New Hampshire Public Defender—to handle the majority of these criminal cases. So why can't that group of lawyers take on these cases?
The New Hampshire Public Defender does take on the bulk of indigent defense cases in New Hampshire. Right now they take about 80%, a bit over 80%, of all indigent defense cases, criminal cases where someone is entitled to have representation.
I should just clarify that not every criminal case entitles someone for representation. So generally speaking, in cases where someone's facing incarceration, that's when you'd be eligible to have a state appointed lawyer at state expense. The state is also looking for the lawyers in abuse and neglect cases, termination of parental rights cases and delinquency matters.
So in some cases you said they're at or a little above 80%. Is there just not capacity for the rest of the cases?
The issue is getting those lawyers. Generally speaking, if someone qualifies for counsel, that case goes to the public defender in the first instance. If the public defender can't accept that case, it's for either one of two reasons. The first would be if the public defender has a legal conflict with that person. The other cases, which are more concerning, are cases where the public defender has had to close to a court due to being at sort of a caseload maximum. And that's where we have to find a private attorney to take those cases.
Earlier, you mentioned that this issue really became more pronounced around the time of the pandemic. Are there other reasons that this shortage has persisted?
One other factor that I've sort of learned about in my role has been that New Hampshire has a fairly low number of lawyers per capita compared to other states. We just don't have a lot of lawyers. And that leads there to be fewer lawyers generally willing to take these cases.
Indigent defense can be difficult. The compensation does not always achieve parity with what someone could do as a lawyer in other fields. That could be a disincentive to take [these] cases.
Data in a case has exploded. There's exponentially more data involved in almost every type of case now than there used to be: cruiser camera, body camera, perhaps footage from a holding cell. That could be gigabytes of data. Much of that data needs to be reviewed by an attorney. It does mean that you need more time for a case, and that’s certainly a factor.
There have been lawsuits in other states over this issue, including an ongoing case in Maine. There, the ACLU sued the government because so many people are sitting in jail awaiting trial without a lawyer. Is there a fear that a similar case could happen here in New Hampshire?
As the director of the Judicial Council, my priority is ensuring that we do the best with the resources we have available and doing everything we can to attract lawyers to take cases. The Judicial Council has recommended increased rates for attorneys. We've recommended changing the caps for attorneys.
Something that my predecessor worked on with UNH Legal Clinic was a program where what was provided was training, and what was expected in exchange was attorneys taking indigent defense cases. That program was very successful. It's something we hope to replicate in the next biennium.
