This article is the first in a series examining the indigent defense crisis in the Granite State.

By Tom Jarvis

New Hampshire’s criminal courts are amid a crisis due to a critical shortage of public defenders, contract counsel, and court-appointed counsel. This has caused delays in the court system, leaving indigent defendants waiting for months – some while languishing in custody – before receiving legal representation. This shortage is exacerbated by factors such as high attrition, burnout, low wages, heavy caseloads, and student debt. The shortage, a nationwide issue as well as a New Hampshire concern, can have drastic consequences if left unaddressed.

“A federal court in Oregon has actually ordered that individuals who are incarcerated pretrial be released,” says New Hampshire Public Defender (NHPD) Board President Michael Iacopino. “These are people who presumably went through some sort of preventative detention hearing, but the judges ordered them released because the State could not meet its burden of providing them with counsel. There has also been litigation over caseloads, and the ability of public defender programs to serve those caseloads, in other jurisdictions. If things get much worse, that could happen here, as well. The Public Defender program could also shut down courts and say we cannot take any more cases. We are loathe to do that because everybody in the Public Defender program – from the board of directors, through the administration, all the way down to our newest legal assistant – all subscribe to the mission that the government must provide a good defense to every indigent person that is accused.”

NHPD Director of Professional Development Kyle Robidas underscores that the shortage is at a crisis level.

“Attorneys are overloaded and overbooked, and they’re scheduled to be in four or five places at the same time on the same day,” says Robidas, who also serves as the NHBA Hillsborough County North Governor. “That really slows down the process for the accused awaiting trial, it delays justice for victims, it increases the workload for prosecutors, it wastes valuable court time, and everything just snowballs.”

New Hampshire Judicial Council (NHJC) Executive Director Jay Buckey agrees, saying, “It’s certainly a major problem, and it’s one that needs to be addressed urgently.”

History and Statistics

In Gideon v. Wainwright (1963), the United States Supreme Court ruled that the Constitution requires states to provide defense attorneys to criminal defendants charged with serious offenses who cannot afford lawyers. This led states to create public defenders, a concept first proposed in the 1890s by California’s first woman attorney, Clara Shortridge Foltz. The NHPD was established in 1972 as a pilot project of New Hampshire Legal Assistance and became a standalone institution in 1985.

The indigent defense system is funded and administered by the NHJC, an Executive Branch agency overseen by a council of 24 members and staffed by three. By statute, all indigent criminal defense cases go to the NHPD first. If they have a conflict on a case, the NHJC gives it to contract counsel or assigned counsel.

During a 2024 Governor’s Operating Budget Hearing, Buckey reported that the NHPD handled 21,322 cases in 2023.

The NHPD currently employs 140 attorneys. In its recent audit of the NHJC, the Legislative Budget Assistant reported that the NHPD is supplemented by 17 contract attorneys and approximately 45 attorneys who regularly serve as assigned counsel in criminal cases. The report also highlights that between 20 and 40 incarcerated defendants were awaiting counsel, along with 100 to 125 non-incarcerated defendants and approximately 10 juveniles.

“The report’s conclusion is both undeniably correct and disturbing: ‘The lack of timely assignment of counsel to indigent defendants violates the Sixth Amendment of the US Constitution, and the rights of the defendants,’” says New Hampshire Supreme Court Chief Justice Gordon MacDonald. “The consequences of this crisis are felt by our trial courts every day. This is an issue all three branches of government must come together to address.”

High Attrition

One of the main factors causing the shortage of lawyers at the NHPD is high attrition. According to the NHJC, the attrition rate has nearly tripled in the last few years, increasing by 262.5 percent. Even after the impact of the “Great Resignation” following the COVID-19 pandemic, attorneys continue to leave.

“We continue to lose attorneys at an alarming rate,” says Robidas. “In the last fiscal year (July to July), we lost 29 lawyers – an unprecedented number. Since July, we’ve already had 16 lawyers leave or give notice… We are doing everything we can to retain the attorneys we have and recruit more to expand as much as possible. This next budget for us is a very big deal.”

Some of the main causes of the NHPD’s high attrition – and its difficulty in recruiting new lawyers – include low pay, heavy caseloads, a decrease in law school enrollment, and a decrease in law students drawn to public interest.

Low Wages

According to the NHPD, it pays the lowest of all the public defender programs among New England states and is in the bottom quarter for pay nationally. In addition, the starting salary of $65,000 is lower than every county attorney office in the state.

“We’ve done a lot to try to increase that, but every time we have tried to increase our salaries, everybody else [other New England Public Defenders] has gone up,” says Iacopino, who also sits on the NHBA Board of Governors as the ABA Association Delegate. “And other public defenders actually poach the New Hampshire Public Defender program for attorneys because they can offer more money. Thank heavens the public defenders don’t get into this line of work for the money, but instead they are there for the mission. I believe that is the truth with all our staff at the New Hampshire Public Defender.”

Heavy Caseloads

The American Bar Association (ABA) has reported that public defenders in many states are carrying excessive workloads. In some areas, attorneys are juggling far more cases than is manageable, with some handling over 500 cases annually, well beyond the ABA’s recommended limit of 150 felony cases per year. This issue has been compounded by funding challenges, with many public defender offices receiving inadequate budgets to meet the growing demand for their services.

The NHPD is currently overburdened, causing many attorneys to leave due to burnout or the difficulty of maintaining a sustainable workload. Every time an attorney leaves the NHPD, the caseloads of other attorneys in the office increase. At the same time, there is a shortage of contract counsel for cases that the NHPD has a conflict with.

“Our public defender offices routinely exceed caseload limits [a recommended limit of 70 cases],” says Robidas. “Over 17 percent of our staff exceed 100 cases with some staff approaching twice the limit. This is untenable in the long term and must be addressed.”

More Complex and Lengthier Cases

Aside from the attrition, there are other reasons for the overwhelming caseloads at the NHPD, such as criminal cases becoming more complex and lengthier due to the emergence of electronic data.

“It’s very different today compared to years ago when there was less data,” Robidas says. “Cases that used to just have a simple police report now have 20 hours of body camera footage and significantly more to process through. In some of these cases, you could look at the discovery every single day, all day, for a year and still not be able to review it all. The data and information alone are burying our attorneys.”

The NHJC reports that data storage needs have surged due to body camera footage and other digital media, increasing at the NHPD from 12.3 terabytes in 2018 to 106.9 terabytes in 2024.

“When I was starting off as a public defender, a case could involve a couple sheets of paper, a report, and a driving record, but now, most cases have hours of body camera footage, cruiser cam footage, and even jail cell footage” says Buckey. “The cases have gotten more complex, but the amount of body camera footage is just tremendous.”

The end of the Felonies First program, which redefined the processing of felony cases, has also contributed to longer-lasting cases with more hearings and increased the logistical burden of arraignments, according to Buckey. In 2014, the average duration that cases remained open was less than 20 week but by 2024, it has risen to over 35 weeks, the NHPD reports.

The creation of specialty courts has also led to increased time commitments for attorneys outside their regular caseloads.

“We are huge advocates that treatment courts are more effective than incarceration,” says Robidas. “They work well, and they can do great things for the community, but it results in additional hours that our attorneys are spending in treatment courts that are not even captured in our total caseloads.”

According to Robidas, there are 28 staff attorneys throughout the state that serve in some capacity on various treatment courts. Their combined time contribution in a week is approximately 124 hours. These attorneys are mostly senior attorneys that have excessive caseloads on top of this additional responsibility.

“It’s a double-edged sword because on the one hand, specialty courts produce some great results and are certainly a worthwhile endeavor,” says Buckey. “However, they constitute a major allocation of resources from the Public Defender because that’s time the public defenders are spending in those courts, not doing other cases.”

Law School and the Legal Market

The NHPD’s attorney shortage can also be partly attributed to a decrease in law school enrollment, as well as an increase in new graduates seeking employment elsewhere.

“From 2010 to 2023, law school enrollment dropped by 20.8 percent, leading to a smaller pool of candidates,” says Robidas. “On top of that, you have less people entering public service work. Then, New Hampshire’s very high cost of living makes it less attractive than larger urban areas. As a result, we’ve had to ramp up recruitment efforts.”

Iacopino notes that fewer people attending law school and becoming lawyers makes the market more expensive for legal service providers of every kind. He says that public defenders often start their careers young, but as they establish families, financial concerns become more significant. He believes that broader market conditions in attorney hiring have played a role in the attrition.

To Be Continued

Despite these challenges, Iacopino underscores the unwavering dedication and skill of the NHPD staff.

“I would like to add that the lawyers and staff in the Public Defender program are absolutely the best in the state,” he says. “They are smart, quick on their feet, resilient, compassionate, skillful, and they receive the best training. But we need more of them. I am so proud of the folks in our program. I’m a criminal defense lawyer myself and I go to courts all around the state. In every courthouse, the best lawyer in the courtroom that I see is not me – it’s one of the public defenders.”

In the next article of the NHBA Indigent Defense Crisis Series (in the February issue), the Bar News continues the conversation with Iacopino, Robidas, and Buckey to discuss what has been done to address the public defender shortage and what still needs to be done. Other contributing factors such as the incarceration rate, skepticism toward the presumption of innocence, and bail reform will also be included.