Late last year, several of the state’s most experienced attorneys accepted an urgent invite to the state Supreme Court’s conference room. The state Supreme Court justices, including Chief Justice Gordon MacDonald, made a big ask.
Crushing caseloads had driven a mass exodus of public defenders, leaving 185 criminal defendants too poor to hire an attorney facing incarceration with no one to defend them. Would the lawyers around the table take some of those cases for as little as $60 an hour, a fraction of the $350 to $450 hourly rate their firms typically charge. And regardless of how much time and staff each case took, their
capped at $1,400 for a misdemeanor and $4,100 to $8,000 for felonies.
All said yes. One, Michael Ramsdell, a former criminal prosecutor now at Sheehan Phinney, delayed his retirement to take several. While this mitigated the crisis, it has not resolved it. Legal advocates say it is now time for lawmakers to step in and fulfill their constitutional obligation to provide indigent clients facing incarceration a free lawyer.
The state Supreme Court, New Hampshire Judicial Council, and New Hampshire Public Defender program say it’s critical the state increase the hourly rates and caps on payments and make permanent the temporary pay raises public defenders received.
Raising the rates and caps is estimated to cost $3.6 million annually according to the New Hampshire Judicial Council, which oversees the indigent defense program. Without the increase, recruiting and retaining lawyers for indigent defendants will remain a significant challenge, legal advocates said. Making the temporary pay raises to public defenders permanent is estimated to cost $2.3 million annually.
“Right now we are just treading water,” said Supreme Court Justice Patrick Donovan, who is heading up the court’s Criminal Defense Task Force, formed a year ago to address the crisis. “We need more resources. We need more attorneys to start taking these cases. But people can’t afford to take these cases and make a living because you are not just losing money with that case, but also losing money on other cases that you can’t accept while doing that case.”
Asked about increasing the hourly rate increases, Gov. Chris Sununu’s chief of staff, Jayne Millerick, said he has already supported additional funding for indigent defense and “remains committed to the exceptional New Hampshire indigent defense program and the outstanding attorneys that work tirelessly to represent their clients. Given that the assigned attorneys rates haven’t increased for decades, Governor Sununu is supportive of this process moving forward to seek additional funds from the legislature for the proposed hourly rate increases.”
His position on making the temporary pay raises to public defenders permanent remains a question.
“The Governor is not yet prepared to make long-term financial commitments through general funds relative to the request by the state’s public defender program, given economic uncertainty,” his office said in an email.
But it is legislators who must first agree to include increases in the state budget.
One, Rep. Bob Lynn, a Windham Republican member of the House Fiscal Committee, said he’d be open to budget increases but would want specifics, including the extent the state is relying on contract attorneys, which sign agreements with the state to take cases at reduced rates. He would also want to know how the proposed hourly payment compares the going rate for attorneys.
“I understand the importance of the entire indigent defense program,” said Lynn, a retired superior court judge. “$60 an hour seems pretty low for an attorney’s compensation. I could be proven wrong on that, but I would be surprised.”
Republican Rep. Karen Umberger of Kearsarge who serves as chairwoman of the Joint Legislative Fiscal Committee and the House Fiscal Committee, both of which make funding decisions for the indigent defense program, said she also supported the increases. “We as a state, in my opinion, cannot let this go on for much longer,” she said