This story was originally produced by the New Hampshire Bulletin, an independent local newsroom that allows NHPR and other outlets to republish its reporting.
As Republicans call for higher scrutiny of indigent defense counsel spending, the New Hampshire Department of Employment Security is exploring a new way to prove whether defendants are low-income: W2 forms.
The proposal, Department of Employment Security Commissioner Rich Lavers told the Executive Council Wednesday, would involve the department sharing the state’s W2 wage data with the courts to allow judges to determine the income of a person requesting a free attorney.
“We’re looking at some ideas around piloting that so it’s going to be successful,” Lavers said.
The idea comes as Republican executive councilors, led by John Stephen of Manchester, have raised concerns over the amount the state spends on indigent defense. In October, the council voted to freeze $5.5 million in funding to the New Hampshire Judicial Council to pay for indigent defense counsel. The council later voted to restore a smaller portion of that funding — $1.5 million — but requested that the system be reviewed.
The Sixth Amendment of the U.S. Constitution establishes the right to effective counsel, and the 14th Amendment requires all states to secure that right — including by providing attorneys to those who can’t afford them. In New Hampshire, that work falls to the Judicial Council, which approves about 25,000 appointments of counsel a year.
A 253-page review by the nonprofit organization Sixth Amendment Center in 2022 found that New Hampshire’s indigent defense attorneys are beleaguered by high case loads and low compensation, driving many away and creating major backlogs.
“As more experienced attorneys leave the system, the remaining attorneys are forced to take on even more cases, causing a cycle of greater frustration and burnout, and indigent defendants wait longer and longer to have an attorney assigned to represent,” the review concluded.
Speaking Wednesday, Lavers said the Department of Employment Security has statutory authorization to share the data, but that the department is still sorting out confidentiality questions.
And Judge Christopher Keating, the first-appointed state court administrator, said the departments needed to build “a little bit of the infrastructure” to get the information to courts quickly. Speed is essential to allow criminal cases to move ahead with all parties adequately represented, Keating told the council.
To support that speed, the department and judicial branch are considering making the data verification retroactive — allowing courts to approve court-appointed counsel and verify their status afterward, Keating said.
“We need to get going on this,” he said. “It’s tricky because the appointment of counsel process happens lightning fast, because there are important considerations involved in getting people access to counsel promptly.”
Keating said the pilot program would assess the efficiency of the verification process, as well as its cost-effectiveness.
The Sixth Amendment Center review raised concerns that some people in need do not receive timely access to counsel. Republican executive councilors say they are focusing specifically on those who should not receive it.
Stephen, a former assistant attorney general at the Department of Justice, has praised the proposal. And he sought to clarify Wednesday that he is not calling for the courts to carry out exhaustive, impractical reviews — nor for indigent defendants to be denied a defense.
“I’m not talking about impairing … fundamental constitutional rights,” he said. “But if we find that someone lied, I’ll come out of retirement as a prosecutor. We need to make sure they’re held accountable, and I haven’t seen that.”
The Executive Council’s fiscal freeze last year has prompted the Judicial Council and state court system to review current practices. In November, the state Supreme Court convened a task force led by Associate Justice Melissa Countway to study the issue; that task force issued a report Feb. 12.
The report found that New Hampshire’s current system of financial need verification varies from court to court. And it recommended the Granite State adopt objective standards, rather than subjective standards, to review need.
“While the (current) framework ensures judicial oversight and case-specific review, it does not include uniform eligibility thresholds, presumptive standards, or standardized verification mechanisms,” the report found.
Currently, state statute requires courts to provide an attorney to any defendant who is “financially unable to obtain counsel.” Courts are expected to compare the defendant’s income and assets with the “minimum cost” to hire a qualified attorney. Any individual who requests such an attorney must sign a form attesting to their inability to afford one, under penalty of perjury.
After receiving that request, courts are expected to make a determination of eligibility within 24 hours, according to the task force report. That determination is typically made by court staff but occasionally involves a judge.
The Legislature officially repealed the Department of Administrative Service’s rules guiding determinations in 2025, but, lacking any replacement rules, most courts continue to use them as guidelines, according to the task force report.
The New Hampshire task force reviewed other states’ verification practices. Many states have built a presumption that a defendant is eligible if they are already receiving state or federal public assistance. Other states, like Massachusetts, require indigent defendants to agree to allow their tax and wage data to be reviewed by the court.
In total, 27 states, including Vermont and Massachusetts, use “objective standards”; nine states, including New Hampshire, use “subjective standards,” and 14 states have no standards, the task force stated, citing analysis by the Sixth Amendment Center.
The New Hampshire report recommends the state provide presumptive eligibility to defendants receiving help from the Temporary Assistance for Needy Families program, Supplemental Nutritional Assistance Program, or Supplementary Security Income, as well as to any defendant living in public housing.
It suggests that the request forms be simplified, and that courts automatically reject all incomplete requests for counsel.
And it backed Lavers and Keating’s suggestion of sharing wage data, while cautioning that such a program should allow only a limited number of court employees to view that data, and should require those employees to sign confidentiality and user agreements.
“We recognize that our Public Defenders and other court appointed counsel are working with heavy caseloads, and that improper appointment of counsel can contribute to that issue,” the report concludes. “We believe that streamlining our current processes, adopting an objective standard for qualification and rejecting incomplete applications will be an important initial step in improving the appointment of counsel process.”
But according to the Sixth Amendment Center, one other ingredient could improve the situation: funding.
“As a result of inadequate funding and insufficient staffing for the judicial council, the taxpayers and policymakers in New Hampshire do not know on an ongoing basis how many attorneys are actually required and provided to represent indigent defendants in all the trial court locations in the state,” it stated.
New Hampshire Bulletin is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. New Hampshire Bulletin maintains editorial independence. Contact Editor Dana Wormald for questions: info@newhampshirebulletin.com.
