New Hampshire report

Photo: Merrimack Superior Courthouse and NH Capitol Building, 6AC 2022

FULL REPORT (3.8 MB, PDF file): Sixth Amendment Center, The Right to Counsel in New Hampshire: Evaluation of Trial-Level Indigent Defense Representation in Adult Criminal and Juvenile Delinquency Cases (October  2022).

EXECUTIVE SUMMARY ONLY (1.2 MB, PDF file): Sixth Amendment Center, The Right to Counsel in New Hampshire: Evaluation of Trial-Level Indigent Defense Representation in Adult Criminal and Juvenile Delinquency Cases (October  2022).

In 1963, the U.S. Supreme Court held in Gideon v. Wainwright that providing and protecting the Sixth Amendment right to effective assistance of counsel is a constitutional obligation of the states under the due process clause of the Fourteenth Amendment. Beginning in 1977, New Hampshire became one of the few states in the entire country where the state both provides all of the funding for its indigent defense system and has a state-level agency that is responsible for overseeing and administering the indigent defense system. 

The State of New Hampshire has vested in the New Hampshire Judicial Council (judicial council) the entirety of the state’s Fourteenth Amendment obligation to ensure effective Sixth Amendment services. At the request of the judicial council, through the U.S. Department of Justice, Bureau of Justice Assistance, 6AC conducted a statewide study of the indigent representation services provided in the trial courts in adult criminal and juvenile delinquency cases. 6AC’s report concludes that New Hampshire’s indigent defense system is inadequately funded and lacks the structural safeguards necessary to ensure the provision of effective assistance of counsel to every indigent defendant, as required by the federal and state constitutions, allowing for the possibility of both actual and constructive denial of the right to effective assistance of counsel to at least some indigent defendants.

As this evaluation shows, the judicial council has only three staff members to try to annually ensure effective representation in approximately 39,000 cases of indigent defendants heard in 42 trial court locations before 58 judges, while contemporaneously trying to find attorneys willing to take cases for inadequate compensation. That is an impossible task for even the most dedicated of employees. 

New Hampshire uses a three-part system of private attorneys to provide the right to counsel in adult criminal and juvenile delinquency cases, in every case where the courts appoint counsel. New Hampshire is the only state in the country that contracts with a single private, non-profit law firm to serve as the statewide public defender office – the New Hampshire Public Defender office (NHPD) is the state’s “public defender program.” Whenever the NHPD declares that it is unavailable in a specific case, the Conflict Case Administrator Office (operated and administered by the NHPD) works with the judicial council’s executive director to reassign the case to either a private attorney contracted with the judicial council to provide representation in a limited number of appointed cases and known as “contract counsel” or a private attorney paid an hourly rate and known as “assigned counsel.”

This report shows that, while New Hampshire has many well-qualified, skilled, and passionate defense attorneys providing representation all across the state, those attorneys are placed in an untenable situation in which they are asked to carry excessive caseloads while being inadequately compensated. The excessive caseloads sometimes cause appointed attorneys to triage the services they provide to their appointed clients, pitting the interests of one indigent defendant against those of another. The inadequate compensation sometimes leads to conflicts of interest that pit the financial interests of the appointed attorney against the legal interests of the defendant they have been appointed to represent. 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 onset of a worldwide pandemic exacerbated these issues. 

Meanwhile, as a result of inadequate funding for indigent defense services and insufficient staffing for the judicial council, the taxpayers and policymakers in New Hampshire do not know on an ongoing basis whether and when indigent defendants who are constitutionally entitled to public counsel are in fact receiving an attorney, nor do they know whether there is a sufficient number of attorneys with sufficient time and resources to provide effective assistance of counsel to every indigent defendant.

The judicial council cannot solve these problems on its own. Instead of protecting the independence of the defense function, as constitutionally required, the State of New Hampshire has imposed a framework that institutionalizes both conflicts of interest and a lack of independence from the judicial and political branches of government. Both judges and prosecutors serve on the judicial council that is responsible for administering the entirety of New Hampshire’s indigent defense delivery system and for ensuring its quality and cost effectiveness, leading to conflicts of interest between their role in overseeing the provision of the right to counsel and their role as a judge or prosecutor. Other members of the judicial council may themselves benefit financially from decisions they participate in making. Furthermore, the provision of indigent defense is not the judicial council’s only duty, so from the outset the judicial council as a whole has divided loyalties imposed on it by state law. And all indigent defense system attorneys in New Hampshire are wholly dependent on decisions made by the judicial council for their continued engagement as indigent defense system attorneys and for the resources necessary to provide effective representation to their appointed clients.

6AC’s recommendations address the needs for adequate funding for the indigent defense system, sufficient staff for the judicial council, and the structural safeguards that are necessary to ensure effective assistance of counsel to each indigent defendant.