By Tom Jarvis
State officials are exploring whether wage data collected by the New Hampshire Employment Security (NHES) could be used to help courts determine eligibility for appointed counsel. The proposal is part of a broader review of indigent defense practices.
The effort follows concerns raised by state leadership.
“The governor and the Executive Council urged us to examine the efficacy of conducting eligibility verification because they expressed concern that there may be people who are submitting requests for the appointment of counsel and providing misleading or unreliable information,” says Judge Christopher Keating, the New Hampshire Judicial Branch’s state court administrator.
The Judicial Branch is now working to evaluate how such a system could function in practice.
“We hope to launch a pilot program to make sure that we can have a good grasp on what’s entailed in eligibility verification,” he says. “The value of a pilot program is that we can look at that at the end of the day and say, ‘this is how much effort it took … and here’s what we learned from doing it.’”
Judge Keating says he would like to have a pilot program in place by late spring or early summer.
Proposal and Background
The concept of using wage data originated during discussions about indigent defense funding, according to NHES Commissioner Rich Lavers.
“It was originally raised by Executive Counselor John Stevens … regarding one of the requests for additional funds in order to continue to pay for indigent defense,” Lavers says.
Under the proposal, courts would be able to access wage information currently collected by the NHES through quarterly employer filings. Lavers says the department already uses that data to verify eligibility for unemployment benefits and other public assistance programs.
“That quarterly information is a good way to assess and verify the information being provided by applicants,” he says, “and it helps us preserve the dollars for those programs for the people who meet the eligibility requirements.”
Lavers says any implementation would require an agreement between the Judicial Branch and NHES, which would need approval from the Executive Council.
Legal Framework and Recommendations
Judge Keating emphasizes that the proposal would not affect the legal standard for determining eligibility.
“The standard for the appointment of counsel has been established by statute,” he says. “So that’s not going to change.”
Under current law, courts determine whether a defendant is financially unable to obtain counsel by comparing the defendant’s income and assets to the cost of hiring private counsel.
A Judicial Branch task force on indigency verification, led by New Hampshire Supreme Court Associate Justice Melissa Countway, reviewed current appointment practices and issued a report on February 12.
“The task force came up with a number of recommendations, including the establishment of more objective standards for judges to utilize when they are making eligibility determinations,” Judge Keating says.
Balancing Accuracy and Speed
Judge Keating says the courts are exploring ways to ensure that any verification process does not slow down appointments.
“What I’m hoping is that we engineer this system to not diminish in any way the speed with which we act on requests for the appointment of counsel,” he says.
One option under consideration would be to verify eligibility after counsel has already been appointed.
“What that may entail is having to do the eligibility verification work after the fact,” Judge Keating says.
New Hampshire Public Defender Executive Director Christopher Johnson also points to potential delays as a concern.
“I do not expect a significant practical impact on the work of public defenders,” he says. “The main issue that could arise would be a delay in the appointment of counsel for eligible defendants, and therefore a delay in important early hearings in the case, depending on the logistics and timing of the verification process.”
He says the structure of the verification process will be key.
“That delay would be avoided if the verification process permits a provisional appointment of counsel so that the work can begin while the verification process proceeds,” he says.
Other officials also cite timing and logistical challenges.
“The logistics behind doing a lot of agency verification would be quite intensive, given the number of people, the number of assignments at issue,” says New Hampshire Judicial Council Executive Director Jay Buckey.
He adds that the current timeline for appointing counsel is often very tight.
“Having that person be arrested, incarcerated, do the necessary paperwork, and then verify that information all within the span of a few hours is difficult,” he says.
Data Limitations and Safeguards
Lavers notes that wage data could help fill gaps in the current system but would not provide a complete picture of a defendant’s financial situation.
“It’s not all-encompassing,” he says. “One of the biggest limitations is that employers report the data after the quarter has already ended. So you have a lag. It’s not going to solve all the issues, but it still fills a big gap.”
He also emphasizes that any data-sharing arrangement would include safeguards.
“We want to make sure that this information stays secure and tightly regulated,” Lavers says. “It’s not just every person coming in and being able to look up someone’s wage data. We need to make sure that it stays secure and tightly controlled.”
Scope and Impact
Buckey says he has not heard widespread concern that large numbers of ineligible defendants are receiving appointed counsel.
“There’s not a perception that there has been a high number of people obtaining services they’re not entitled to,” he says.
He adds that the proposal is unlikely to significantly affect the number of defendants who qualify for appointed counsel.
“I don’t think it would have a substantial impact,” Buckey says.
Next Steps
The Judicial Branch is continuing to develop the proposal and assess how a verification system could be implemented.
“The Executive Council is asking us a legitimate question: ‘Is there waste, fraud, or abuse in the appointment of counsel process in New Hampshire?’” Judge Keating says. “I think it’s incumbent upon the Judicial Branch and the Judicial Council to work together to provide a reliable, cost-effective answer to that question.”
At the same time, he emphasizes that any changes must preserve timely access to counsel.
“There’s a real due process element associated with making prompt decisions on people’s requests for the appointment of counsel and actually getting that lawyer to the defendant,” Judge Keating says. “It’s really important to get people access to an attorney, particularly given the number of people being held pretrial these days.”