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The right to counsel in New Hampshire
The New Hampshire constitution guarantees that “. . . [e]very person held to answer in any crime or offense punishable by deprivation of liberty shall have the right to counsel at the expense of the state if need is shown; this right he is at liberty to waive, but only after the matter has been thoroughly explained by the court.”
All offenses in New Hampshire are either a felony, a misdemeanor, or a violation. All felonies and Class A misdemeanors are punishable by loss of liberty. Class B misdemeanors and violations do not carry loss of liberty as a possible punishment. In criminal proceedings, indigent defendants charged with a felony or a class A misdemeanor are statutorily entitled to have counsel appointed to represent them, unless they waive the right to appointed counsel, from “initial appearance before the court at every stage of the proceedings until the entry of final judgment,” including on direct appeal. Although a person charged with a class B misdemeanor cannot be sentenced to jail, they can be detained without bail pending trial and state law requires counsel be appointed to represent any indigent person during that detention hearing.
Delinquency proceedings allege the commission of an offense by a child (under the age of 18): (i) that “would be a felony or misdemeanor . . . if committed by an adult;” or (ii) that is possession of up to 3/4 oz. marijuana or up to 5 grams hashish resulting in the child needing “counseling, supervision, treatment, or rehabilitation.” If adjudicated delinquent (other than for certain delineated offenses), a child can be committed to custody until the age of 18, and in certain circumstances until the age of 21. In delinquency proceedings, indigent children are statutorily entitled to have counsel appointed to represent them, unless they waive the right to appointed counsel.
Though the federal Constitution does not require it, New Hampshire statutorily guarantees appointed counsel to indigent defendants in some later stages of a criminal or delinquency case (including adult probation or parole violation proceedings, and certain post-disposition proceedings in delinquency cases without regard to whether the child is indigent) and to indigent parties in certain civil proceedings (including certain stages & types of involuntary commitment/treatment/guardianship cases, parents alleged to have neglected and/or abused their child, parents in termination of parental rights cases, children in children in need of services cases without regard to whether the child is indigent, and pregnant minors in parental notification of abortion proceedings without regard to whether the minor is indigent).
How the right to counsel is administered and structured
The entire indigent defense system in New Hampshire is provided and overseen by the New Hampshire Judicial Council, except the judicial council is not responsible for rules governing financial eligibility for appointed counsel and recoupment of indigent defense expenditures. Instead, that responsibility is statutorily assigned to the state’s commissioner of administrative services, through its office of cost containment, with the approval of the attorney general.
The New Hampshire Judicial Council is an executive branch state agency, statutorily created in to serve as a statewide forum for on-going consideration of issues affecting the administration of justice. In addition to administering the indigent defense system, the judicial council also makes recommendations to policymakers and others to improve justice policies, practices, and statutes. Most of the judicial council’s responsibility for indigent defense is carried out through its indigent defense subcommittee and its executive director and staff.
As statutorily established, the judicial council has 23 members. Eight members automatically serve (or designate their representative) by virtue of holding some other office:
the chief justice of the supreme court (or their designee);
the chief justice of the superior court;
the administrative judge or deputy administrative judge of the circuit court;
the director of the administrative office of courts;
the attorney general (or their designee);
the president-elect of the New Hampshire Bar Association;
the chair of the senate judiciary committee (or their designee from the committee); and
the chair of the house judiciary committee (or their designee from the committee).
The other 15 members are each appointed to serve a three-year term (and continuing until their successor is appointed):
a superior court clerk, appointed by the chief justice of the superior court;
a circuit court clerk, appointed by the circuit court administrative judge;
six New Hampshire attorneys who have been practicing in New Hampshire for more than five years (three appointed by the governor and council, and three appointed by the chief justice of the supreme court); and
seven lay people (five appointed by the governor and council, and two appointed by the chief justice of the supreme court).
During the 1970s, the judicial council created its indigent defense subcommittee. Since the mid-1990s, the indigent defense subcommittee oversees all proposals, contracting, and other decision-making about indigent defense services, with the full judicial council voting only up or down on the subcommittee’s recommendations. The indigent defense subcommittee is composed of four members of the judicial council, who typically have current or recent experience in criminal defense law; and judicial council members of the attorney general’s office, judicial branch, and legislature do not serve on the indigent defense subcommittee.
The judicial council appoints an executive director who serves at their pleasure. In addition to the executive director, the judicial council has two staff members; the same number of staff it has had for at least 40 years.
How the right to counsel is funded
The state provides 100% of the funding for the state’s entire indigent defense system, through a general fund appropriation in the state’s operating budget that is appropriated to the judicial council. From that appropriation, the judicial council pays for (among other things) all representation provided to indigent defendants in criminal and juvenile delinquency cases, including both: the cost of the attorney; and “investigative, expert and other services and expenses, including process to compel the attendance of witnesses, as may be necessary for an adequate defense before the courts of this state,” which the judicial council refers to anecdotally as “services other than counsel.” If expenditures are anticipated to exceed the operating budget appropriation, the judicial council can and does go to the legislature’s fiscal committee to request additional funding, which the governor and council can authorize to be paid “from any money in the treasury not otherwise appropriated.”
The methods used to provide public counsel
As required by New Hampshire statutes, all indigent defendants who receive appointed counsel are represented by a private attorney (not an attorney employed by government). New Hampshire is the only state in the country that contracts with a single private law firm to serve as the statewide public defender office.
The judicial council 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:
a two-year contract with the non-profit New Hampshire Public Defender law firm to serve as the state’s “public defender program;”
a series of one-year contracts with individual private attorneys, for-profit private law firms, and a law school, referred to as “contract counsel,” to be available for assignment (in non-homicide cases) when the New Hampshire Public Defender has a conflict or is otherwise unavailable; and
case-by-case appointments of individual private attorneys, referred to as “assigned counsel,” who accept assignments in cases when the New Hampshire Public Defender is unavailable and there is no available contract counsel.
Although the judicial council has had authority since 1988, with approval of the governor and council, to additionally contract with an “alternate public defender program” to provide indigent representation when the primary public defender program has a conflict or is otherwise unable to be appointed, it has never done so.
The New Hampshire Public Defender (NHPD) is a non-profit law firm that since 1986 has served as the statewide public defender program, through a series of two-year contracts with the state’s judicial council. The NHPD is organized into: central administration; the Conflict Case Administrator Office (CCAO); the information technology department; an appellate division; and 10 branch offices. Unless the NHPD has a conflict, all trial-level representation of indigent defendants in New Hampshire is provided by attorneys under subcontract to the NHPD or attorneys employed by the NHPD in one of the NHPD’s 10 branch offices:
the Concord office, located in Merrimack County;
the Dover office, located in Strafford County;
the Keene office, located in Cheshire County;
the Laconia office, located in Belknap County;
the Littleton office and the Orford office, both located in Grafton County;
the Manchester office and the Nashua office, both located in Hillsborough County;
the Newport office, located in Sullivan County; and
the Stratham office, located in Rockingham County.
The NHPD does not have a branch office in Coos County, where most representation is provided through the Littleton branch office in Grafton County. The NHPD also does not have a branch office in Carroll County, where most representation is provided through the Laconia branch office in Belknap County.
Whenever the NHPD has a conflict of interest in an indigent defendant’s trial-level case, the NHPD’s Conflict Case Administrator Office (CCAO) distributes those cases, first to a contract counsel attorney if one is available, and secondarily to an assigned counsel attorney. Contract counsel attorneys are private attorneys who work in either a law school or private law offices that have a one-year contract with the judicial council to be available for assignments to represent indigent defendants in non-homicide cases in certain court locations – there are some court locations in the state where there may be only one contract counsel attorney available to be assigned cases of indigent defendants. Assigned counsel attorneys are private attorneys who accept assignments through the judicial council on a case-by-case basis.
New Hampshire Constitution, pt. I, art. 15
New Hampshire Revised Statutes, § 21-I:7-b (commissioner of administrative services’ office of cost containment), and tit. 494 (judicial council), and tit. 604-A and tit. 604-B (provision of counsel to indigent defendants)
New Hampshire Administrative Rules, ch. Adm 1000 (eligibility for appointed counsel and recoupment of indigent defense expenditures)
Source of data: original research conducted by Sixth Amendment Center staff.