This article is a continuation of the first article in the series examining the indigent defense crisis in the Granite State.
By Tom Jarvis
The first installment of the NHBA Indigent Defense Crisis Series examined the ongoing shortage of public defenders in New Hampshire and the systemic challenges fueling the crisis – high attrition rates, heavy caseloads, low wages, and a shrinking pipeline of law school graduates pursuing public service. The consequences of this shortage are severe, delaying justice for defendants and victims alike while placing immense strain on the court system. This next installment focuses on the measures being taken to address the crisis, the obstacles that remain, and the broader systemic factors – such as incarceration rates, the presumption of innocence, and bail reform – that shape the landscape of indigent defense in the Granite State.
Incarceration Rates
According to the American Civil Liberties Union, despite making up close to five percent of the global population, the US has more than 20 percent of the world’s prison population. Since 1970, our incarcerated population has increased by 500 percent – today, two million people are in jail and prison – far outpacing population growth and crime.
In a June 2023 article for the National Association for Public Defense, “Why Our Public Defense Systems Are Collapsing,” University of Wisconsin Law School Public Defender Project Director John Gross examines the intersection of the indigent defense crisis and the nation’s high incarceration rates.
“Our public defense systems are not necessarily designed to fail, but they are designed to come as close to failure as possible,” Gross says, describing the crisis as a vicious cycle: understaffing leads to excessive caseloads, which drive attrition, further deepening the staffing shortages.
“I don’t see any short-term solutions,” he says, noting that law schools aren’t producing enough graduates, tuition remains high, and legislators are unlikely to approve significant pay raises. Even if they did, he argues, there still wouldn’t be enough lawyers to fill the gaps.
The simplest fix, Gross suggests, would be to reduce the number of cases entering the system, but he doubts that will happen.
“Our nation’s addiction to incarceration rules that out,” he says, adding that judges could dismiss cases when defense attorneys aren’t available, but he questions whether they would, saying that they have enabled a system where caseloads are routinely overwhelming.
“It shouldn’t come as a surprise that a system that has spent half a century in crisis eventually collapses,” he concludes. “Perhaps we should be surprised that it has survived this long and managed to provide a veneer of legitimacy to our criminal legal system.”
New Hampshire Public Defender (NHPD) Director of Professional Development Kyle Robidas says that in certain cases, there are unclassified misdemeanors, which means the person can be charged with either a Class A or a Class B misdemeanor at the prosecutor’s discretion.
“There are several states where prosecutor offices are also facing significant workload issues and are advocating to make changes to the law, so we are criminalizing less,” he says.
NHPD Board President Michael Iacopino says the State Legislature should consider dropping simple possession from a felony to a misdemeanor.
“If they made those cases misdemeanors, that would be a step in the right direction,” he says. “It shouldn’t be a criminal case at all, in my opinion. It’s more of a public health issue. These cases continue to bog down the criminal justice system. If we made them misdemeanors, they would get through the system quicker. Theft cases, as well. Theft and fraud cases are all based on the amount of the stolen item or the fraud. If it’s over $1,000, it’s a felony. If you increase that to say $2,500, that’s another avenue where the Legislature could, by passing a bill, reduce the number of felony cases that are heard in Superior Court. Obviously, these folks are not going to be released scot-free. They would still face misdemeanor charges, but they would be dealt with in a swifter and more efficient manner.”
Indifference and Skepticism
While high incarceration rates strain the indigent defense system, another key factor contributing to the crisis is the pervasive indifference concerning the right to counsel and skepticism toward the presumption of innocence, which further exacerbates the challenges faced by public defenders.
In his March 2023 Harvard Law Review article, “Reframing the Indigent Defense Crisis,” Gross attributes this attitude to the perception that poor people are responsible for their poverty and that those accused of crimes are likely guilty. The issue is compounded by systemic racism, as Black men make up 13 percent of the male population but 35 percent of incarcerated men. These factors, he suggests, allow elected officials to ignore the crisis.
Gross says he finds it striking that despite widespread public support for public defense reform, these biases continue to obstruct change. He believes part of the problem lies in how indigent defense is framed – as a small part of the judicial system rather than what it truly is: the backbone of criminal justice. He reports that in 2020, criminal cases accounted for 24 percent of state court filings, and when combined with juvenile cases, they made up nearly half of all filings where defendants have the right to counsel. Moreover, over 80 percent of defendants in these cases cannot afford an attorney.
“Indigent defense isn’t just a part of our criminal justice system – it is our criminal justice system,” Gross asserts, adding that failing to provide adequate defense isn’t just a denial of rights in some cases – it’s a systemic failure affecting litigants in most cases.
“Treating our indigent defense crisis as an intractable problem confined to a subset of cases in our criminal courts does not reflect the prevalence of criminal cases where the accused is too poor to hire counsel,” he says. “It also fails to appreciate how the responsibility for safeguarding constitutional rights in our criminal courts has been relegated to a small subset of defense attorneys.”
Gross continues: “Only once we reframe the indigent crisis in relation to the number of criminal cases filed in state courts, the number of public defenders needed to provide effective representation in those cases, and the number of attorneys that are practicing law, can we appreciate the magnitude of the crisis. It is an uncontained crisis that calls into question the legitimacy of our justice system, our commitment to our Constitution, and the role of lawyers in our society.”
Iacopino says he understands how public perceptions might contribute to an indifference toward the Sixth Amendment right to counsel. He says that many people fail to recognize that public defenders and indigent defense counsel are the only lawyers in our society required by the Constitution.
“For those who are indifferent to the Sixth Amendment mandate, I would point out that a well-funded and effective public defense system not only champions constitutional rights but also enhances public safety,” he says. “When public defenders have the resources to provide quality representation, wrongful convictions are avoided, cases are resolved efficiently, and rehabilitative services for clients can be pursued. This reduces drug addiction, homelessness, and recidivism, ensuring the criminal legal system is both fair and effective while promoting safer communities for everyone.”
Bail Reform
This past August, six years after New Hampshire passed a bail reform law aimed at reducing pretrial detention for low-level offenders, former Governor Chris Sununu signed House Bill 318, a bipartisan effort to further revise the state’s bail system. The new law, which took effect in January, makes it more difficult for individuals accused of serious violent crimes to be released immediately by eliminating the option for a bail commissioner review. Instead, these defendants will be held in jail until their arraignment, which must occur within 24 hours.
To facilitate this process, the law also established a magistrate system, where magistrates can conduct arraignment hearings and set bail, even on weekends and holidays. Supporters argue that these changes will enhance public safety and judicial efficiency, while critics, including the New Hampshire Association of Criminal Defense Lawyers, warn that the mandatory 24-hour detention period could unnecessarily disrupt the lives of some defendants who pose no risk.
“Bail reform is certainly going to have an impact on the indigent defense crisis,” says New Hampshire Judicial Council Executive Director Jay Buckey. “It will likely result in more incarcerated people and that will put an additional strain on indigent defense resources. It will lead to more hearings.”
Iacopino agrees, saying that bail reform will exacerbate the indigent defense problem.
“The recent amendments to the bail statute and new legislative proposals are better described as ‘bail retrenchment,’” he says. “Regardless of the policy debate surrounding these efforts, the practical impact is clear: they significantly increase the workload of public defenders and exacerbate court backlogs.”
He says the mandatory pre-arraignment detention for more offenses and the establishment of rebuttable presumptions about detention and release require public defenders to gather and present more detailed client information under tighter time constraints.
“It’s already a challenge in the District Division to get a client’s criminal record before a bail hearing – investigating additional factors required by the new laws will stretch our resources even further,” Iacopino says. “Support staff will also face greater demands. Our small team of social workers and investigators will need to take on more pre-arraignment responsibilities, and intake procedures will require more time and effort, pulling staff away from their traditional duties. These pressures increase existing workloads and compound the existing public defender and indigent defense counsel shortages, making it harder to ensure every client receives the thorough representation they deserve and is constitutionally required.”
What Has Been Done?
Despite the continued challenges of the indigent defense crisis, efforts are being made to address the shortage of public defenders and alleviate the strain on the criminal justice system. These initiatives, while important, face numerous hurdles that impact their effectiveness.
“At one time we received a special appropriation through the Judicial Council for the Public Defender program to provide raises,” says Iacopino. “I personally look at the raises as trying to get people to stay. Our lawyers also unionized about two years ago. The administration of the program and the union worked together to get the Legislature to pass a bill that permits the Public Defender program employees to be on the State health plan, which is a wonderful benefit. We try in every way we can to keep people on board here, with the resources that we can utilize. We have also hired more paralegals and a number of social service representatives.”
Robidas echoes the sentiment, stressing that efforts to improve recruitment and training are essential in the face of a competitive job market.
“Our training program, our mentoring, the vertical representation – those are all really huge keys,” he says. “The State health insurance that we now have, even though we are not a State agency, has been a huge benefit.”
In 2023, The University of New Hampshire Franklin Pierce School of Law launched a nine-month program, the Criminal Defense Academy, to help address the indigent defense crisis by training private attorneys without criminal defense experience. Participants handled 323 cases during the course, significantly reducing the backlog of unrepresented defendants at the time.
“The Criminal Defense Academy was a big success,” Buckey says. “Unfortunately, that was federally funded through the ARPA program and the federal dollars are no longer available.”
What Can Still Be Done?
While some progress has been made, addressing New Hampshire’s indigent defense crisis will require continued, concerted efforts. A recent report by the Sixth Amendment Center, The Right to Counsel in New Hampshire, which highlighted systemic deficiencies in the state’s indigent defense system, recommends the establishment of a state-level public defense commission that would oversee all indigent defense services, providing the independence and resources needed to properly manage and administer these services.
“There’s no getting away from the fact that funding is the cornerstone of success,” Buckey says. “I think providing training programs like the Criminal Defense Academy and hopefully other opportunities through the Bar and the Judicial Council can help. Indigent defense is a major undertaking and one that requires professionalism and people dedicated to doing it. It’s not something that could be handled on an ad hoc or volunteer basis. The Public Defender is the largest law firm in the state, handling over 20,000 cases a year – everything from juvenile cases to homicides. So, it’s something that needs to be looked at seriously and resourced appropriately.”
Iacopino also suggests that better funding is one of the solutions for the crisis.
“In order to address it, we need to recognize that there is a cost – and we must be willing to pay that cost,” he says. “These challenges are not unique to New Hampshire; they reflect a broader national trend. To ensure we continue fulfilling our constitutional mandate and upholding the public’s faith in the justice system, it is essential to properly fund the New Hampshire Public Defender and the Judicial Council. Investing in indigent defense is not just a moral or legal obligation – it is a necessity for safeguarding the constitutional rights of all citizens.”
Iacopino continues: “There was a lot of talk about public safety in this election year. One of the key components of public safety is a good public defense system. If you don’t have a good indigent defense system, you are looking at the vast majority of cases either being resolved unjustly for lack of competent counsel or the federal courts intervening, like in Oregon, requiring the release of people who judges at one point had determined should be incarcerated. The Public Defender program probably represents between 85 percent and 90 percent of all criminal defendants in the system. So, if you don’t want courts that are backed up and can’t get to the cases, you want to have enough skilled public defenders available to take those cases.”
Robidas says it’s all about striking the perfect balance between increasing the pay to be more competitive and lowering caseloads to retain staff.
“We need to make the job more doable long-term,” he says. “You can’t just increase pay and say ‘okay, it’s fixed now,’ because we need to add attorneys to get the caseloads down. We need to consider the additional work that’s having to go into the cases and the additional hours that our attorneys are spending. So, we really need to address things on both fronts to make a dent. It’s an impossible issue. Since I’ve been assisting with the budget process, I’ve reached out to public defender agencies in every single state in the country but two to brainstorm with them. We really are seeing that this isn’t just a New Hampshire problem. It’s a national problem.”
The NHBA Indigent Defense Crisis Series will continue in the next issue.