Report: Juvenile Defense in N.H. 'Gravely Undervalued' | New Hampshire Public Radio

Report: Juvenile Defense in N.H. 'Gravely Undervalued'

Aug 23, 2020

The National Juvenile Defender Center's latest state assessment focused on representation for poor young people New Hampshire.

A national non-profit says legal representation for young people in New Hampshire is “gravely undervalued,” leading to inadequate access to attorneys and unnecessary rates of probation and court involvement.

The National Juvenile Defender Center released its report last week, after spending a year examining how the state handles juvenile delinquency cases.

The group praised New Hampshire for dramatically decreasing the number of young people in detention centers and passing legislation that reduces fines and fees for families involved in the juvenile justice system. But it found that despite having a constitutional right to an attorney, many young people in the state are showing up to court never having met their public defender, and some are waiving their right to counsel entirely.

Weighted Cases and Heavy Workloads

The NJDC focused much of its assessment on the role of the New Hampshire Public Defender, which contracts with the state to provide counsel to indigent clients, including juveniles.

About 3,000 young people are involved in the state’s juvenile justice system per year, but New Hampshire has no specialized juvenile defense unit, making it an outlier in New England. Instead, NJDC says, juvenile court is treated as a “training ground” for younger public defenders with already high adult caseloads.

The NJDC found that the state’s system of weighting cases perpetuates this culture, by paying public defenders and contract attorneys significantly less for juvenile cases - in some cases, just one-eighth of what they would get for an adult case.

Anna Elbroch, who worked as an attorney with the New Hampshire Public Defender before joining UNH Franklin Pierce School of Law, praised the Public Defender for “providing training and mentoring that is unparalleled to other programs.” But she said the limited time allowed for juvenile cases often meant lawyers couldn’t attend education and treatment team meetings for their clients, conduct investigations, or advocate for services outside of the court system.

Moira O’Neill, director of the N.H. Office of the Child Advocate, said this isn’t lost on young people.

“Children are astutely aware of the pressures under which people are attempting to serve them,” O’Neill wrote in a press release. “They receive that ‘undervalued’ message. That has a profound effect on their resiliency, which is really the whole point of a separate juvenile justice system."

Randy Hawkes, the director of the New Hampshire Public Defender, said attorneys are balancing efficiency and effectiveness.

"It would be a luxury to have the additional time that would result from having smaller caseloads. Attorneys could then spend time with juvenile clients, acting as social workers, mentors, teachers, or counselors in addition to their role as defense attorney," he wrote to NHPR. "But NHPD’s current caseloads do not allow for that, a fact underscored by the NJDC Report."

Hawkes said juvenile specialization in the defender office already happens informally.

"We train our lawyers to handle a wide variety of cases," he wrote. "As they become more experienced, certain lawyers gravitate toward juvenile practice because that is what they love to do. Many of those who have gravitated toward juvenile representation are poised to staff a specialized juvenile unit, should funding become available."

Limited Representation and Years of Probation

Advocates say the state’s devaluing of juvenile defense leaves too many young people with limited representation, if any. The NJDC found that “children, particularly those charged with misdemeanors, commonly came to court without counsel." Some of them waived their right to counsel and pled true at arraignments without ever having spoken to a lawyer or been informed of their constitutional rights.

“Young people who plead true are often then assigned a number of probation conditions which can be really hard to manage and adhere to,” says NJDC director Mary Ann Scali. “[This] leads to young people being caught up in the court system for years at a time.”

Anna Elbroch, the former public defender, said probation conditions can feel insurmountable.

“You’re put on probation because you’re having trouble following the rules in the regular world, right?” she said. “And then you’re given more rules, and maybe you’re not given additional services; you’re just told ‘You have these additional rules.’ That’s going to be really hard for any kid.”

Probation violations typically lead to more court involvement and, sometimes, placement in residential or detention facility. State officials are currently looking at how to reform the juvenile probation system through a collaboration with George Washington University.

NHPD director Randy Hawkes recommended that reforms include requiring public defenders be appointed prior to arraignment. He said public defender typically get "excellent results" for their juvneile clients; of the nearly 200 felony cases for juveniles last year, he says, most were resolved without any guilty/true finding.

Racial Disparity in New Hampshire’s Juvenile Justice System

Black and Latino people make up less than ten percent of New Hampshire’s population but nearly 30 percent of youth placed on probation.

This data, which came from the New Hampshire Office of the Child Advocate, puts New Hampshire on par or worse than many other states when it comes to racial disparity in the juvenile justice system, the NJDC says.

Advocates also note that, contrary to public assumption, juvenile cases in New Hampshire sometimes follow people into adulthood.

While juvenile cases are confidential by law, NJDC could not find written policies or verification that courts destroy juvenile records five years after a juvenile offender turns 18.

Advocates gave examples of juvenile records affecting their client’s access to college admissions, employment, military eligibility, and housing.

The NJDC’s list of recommendations to the state include: clarifying protocol for destroying and expunging records; providing more training and support to juvenile defense attorneys; requiring that all youth have access to an attorney before being interrogated by police or showing up to court; and improving data systems to track trends in the juvenile justice system and reduce disparities.

You can read the full report here.

Editor's Note: This story has been updated to include additional comments on the report.