The legal maxim that justice delayed is justice denied certainly hovers over efforts in New Hampshire to address the current crisis in providing adequate legal assistance to indigent criminal defendants. It’s good news that the state is poised to apply federal pandemic aid to address the need. The crisis is not one of only the pandemic’s making, though, and other and broader measures are needed.
The causes for the current crisis are twofold. First, the onset of the pandemic and the need for related safety measures led to a choking backlog of cases. The pandemic, however, has only exacerbated the other cause — the acute shortage of public defenders to represent indigent defendants.
The numbers are eye-popping. A State Supreme Court task force reported on Oct. 27 that approximately 2,000 criminal cases are pending in the Circuit Courts that need appointed representation and are not yet assigned to a lawyer. At the same time, its report added, N.H. Public Defender, whose network of offices is responsible for 85 percent of the indigent defendant caseload, is in many locations maxed out and unable to accept additional cases. Randy Hawkes, the organization’s executive director, told The Sentinel that statewide it has been losing an average of two staff attorneys a month over the past 16 months. With compensation for its public defenders comparatively low and its caseload unprecedentedly high, it’s been unable to hire new lawyers to keep up with the departures. This risks perpetuating a vicious cycle where what the task force report calls “crushing caseloads” will cause more burnout and departures and fuel further case overload.
The backlog has ramifications for indigent defendants beyond only delays in getting their cases resolved, even when they are not in jail awaiting trial. With cases hanging over them, they may face housing insecurity, difficulty finding or keeping a job and loss of driving privileges for prolonged periods. And, as dedicated as the public defenders are, the dangerously high caseload challenges their ability to deliver the effective representation the Constitution requires. That, says Alex Parsons, managing attorney of N.H. Public Defender’s local branch, could become “the legal equivalent of medical malpractice.”
The situation cries out for swift action, and the Executive Council recently approved directing $2 million of federal American Rescue Plan funds to hire 10 temporary attorneys, pay higher administrative fees to the contract attorneys supplementing the public defender system and provide criminal defense training. At the same time, the Supreme Court’s task force called for the Legislature to bring public defender salaries in line with those of prosecutors.
In addition to funding to address the defense lawyer shortage, the task force also recommended steps to ease the court backlog, including implementing earlier case-resolution programs for simpler cases, adopting administrative rule changes and enhancing recruiting to entice more private criminal lawyers to take on indigent cases and scheduling a one-week pause in all criminal cases. These steps, while welcome, are only stopgap, however. As Robin Melone, president of the N.H. Association of Criminal Defense Lawyers, told the Concord Monitor, the task force’s recommendations aren’t “going to solve the issues.” Rather, “ they are hoping to address, in a triage way, the immediate problem.”
The problem is indeed more than an immediate one and predated the pandemic. The disparity of compensation for those representing clients who can’t afford a lawyer has long existed, and that will need funding from the Legislature even after federal pandemic aid dries up. But innovative steps are needed even beyond additional funding. Hawkes notes defense attorneys are increasingly saddled with additional responsibilities beyond court representation, such as developing and monitoring their clients’ post-conviction rehabilitation plans. The tasks, he says, were in the past assigned to parole officers and contribute to the caseload crisis. Surely, use of parole officers, social workers or other professionals could be expanded to ease the burden on public defender attorneys.
Further, increasing numbers of cases assigned to public defenders have opioid or other substance abuse as a direct or underlying cause. The opioid epidemic was a crisis in New Hampshire before the pandemic and will continue afterward, and clearly, providing substance-abuse treatment and other programs with resources and support to help those suffering substance use issues before they get into the criminal justice system will not only improve chances of rehabilitating them but also help relieve indigent client caseload.
Certainly, the governor and the Legislature should heed the call for additional funding to attract additional public defenders. But with the wheel of justice grinding dangerously slowly, they should undertake a more comprehensive approach to insuring the needs of indigent defendants are met.