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Bar News - September 21, 2016

Right to Counsel Comes at a Price for Indigent


Office of Cost Containment Recoups Funds for Criminal Defense and Mediation

Source data provided by NH Department of Administrative Services, Office of Cost Containment and the NH Judicial Council.

Most criminal law practitioners can recite from rote the instruction judges give reminding a criminal defendant that if he or she cannot afford an attorney, one will be appointed. These same people might also take for granted that this service offered by the state is free to the indigent. But, that is not actually the case.

“New Hampshire has a well-regarded indigent defense system,” said Nina Gardner, former executive director and current board member of the NH Judicial Council, the body in charge of appropriations for, among other things, indigent defense. “But on the flip side of the coin, there is also the belief in New Hampshire that you don’t get counsel for free. So cost containment was set up in the ’80s in response to that belief.”

The NH Office of Cost Containment, a division of the NH Department of Administrative Services, was created by the legislature in 1989 after lawmakers realized a few other states had been able to successfully recoup the cost of legal services from indigent criminal defendants.

It’s the job of the OCC to determine a defendant’s current and future ability to pay the debt and then set up a repayment plan.

“If they aren’t able to make payments, we ask that they call us back within a certain period of time and update us on how they are doing,” said Kathy Gallagher, the administrator of the OCC. “Sometimes they are just out of work and they eventually get a job, or they are out on medical leave and they eventually get back to work. We look at their expenses and their income.”

The office currently has 30,000 open cases – although some of these belong to defendants who are incarcerated or simply can’t pay and so, are not active, Gallagher said. The seven-person office processes 400 to 500 indigent defense and 20 to 30 family mediation cases per week on top of handling as many as 200 calls per day, Gallagher said.

Gallagher said the average client she deals with pays about $50 per month, although some can pay as much as $100. The rates the office charge are based on current contract attorney fees set in 2005, Gardner said, and are commensurate with the severity of the crime. For minor offenses, such as a misdemeanor or a probation violation, the fees are $275 and $206, respectively. The rates for felonies, on the other hand, are significantly higher. A simple felony is $756; a more complicated felony, such as a first-degree assault, sexual assault or aggravated felonious sexual assault, however, garners a charge of roughly $2,283.

Further, the 2015 budget included the provision that a defendant could be charged up to $100 an hour for special felonies such as homicide and attempted murder – reflecting the first increase in the hourly rate for attorneys handling cases in about 20 years, from $60 to $100. Gardner said this was a necessary increase because it was becoming increasingly difficult to find attorneys willing to take on these difficult cases.

When it comes to reimbursement for these cases, however, Gardner said, “The most significant cases never get an ounce of reimbursement, because [the defendant is] in jail.”

Gallagher explained that under the law, repayment of the legal services debt is suspended during incarceration. Once a defendant is out of prison, the OCC has six years to try to resume recoupment efforts.

Furthermore, Gallagher said, if a defendant has multiple cases, he or she only has to pay off one at a time. So for example, if the person starts out with a misdemeanor and gets representation, but then racks up, say, a felony and a misdemeanor from different crimes, he or she still only has to make payment on that first case. When that case is paid off, repayment starts on the next case and so on down the line until they are all paid off.

“If they have a misdemeanor, it usually gets paid quickly – within a year,” Gallagher said. “But if they owe on felonies or special felonies, that takes a lot longer. And if all they can do is, say, the $50 a month, I can’t expect them to pay on any of the other ones because that’s all they can do. So it could take a while, it could take some years.”

In fact, Gallagher said, she believes this is one of the reasons why her office has seen a decrease in the amount of money it’s brought in over the past few years.

According to numbers provided by the OCC, the office recouped $2,521,601 in FY 2014 on indigent defense cases, and $2,303,469 in FY 2016.

The drop was even more significant for mediation cases, which carry a rate of $300. In FY 2014, the OCC recouped $61,063 for mediation cases, but only $34,032 in FY 2016. Vicki Quiram, commissioner for the New Hampshire Department of Administrative Services, attributed that decrease to a reduction in the number of people using the court’s mediation service. The number of reimbursement orders coming into the OCC for marital mediation has decreased steadily over the past few years, from 1,268 in FY 2014, down to 610 in FY 2015 and 592 for FY 2016.

The OCC recoups about 10 percent of what is spent by the NH Judicial Council on criminal indigent defense in any given year.

The NH Judicial Council is a 24-member board established to provide assistance and information about the state’s courts and justice system to all branches of state government, as well as to the bar association.

In addition, the Judicial Council provides funding for the Indigent Defense Fund, the Contract Attorney Program, the New Hampshire Public Defender, CASA, NH Legal Aid for civil matters and Guardians ad Litem in guardianship, termination of parental rights and matters of abuse and neglect.

In other words, the Judicial Council receives the financial allocations and spends the money, and the OCC then tries to get it back from people who receive services.

Gardner said the OCC also can technically try to recoup what the council spends on non-representation services such as expert witnesses, translation and deposition services, but it is often difficult to, first, separate out those charges and then, second, go after the defendant for those charges. Therefore, those fees, Gardner said, are often not part of the repayment process.

Gardner said that this year, the council budgeted $930,000 for services other than counsel, $750,000 for abuse and neglect cases and $515,000 for assigned counsel. She also said that the NH Public Defender budget is $20.1 million this year and the council spent $1.8 million on contract attorneys last year.

The OCC, which had an operational cost of $515,548 in FY 2016, recouped a total of $2,337,500 between indigent defense and mediation clients, all of which goes back into the general fund, not to the council’s budget.

As for the rest of the cases the council funds, the recoupment is handled by other offices, namely the NH Department of Health and Human Services.

“There are a lot of other recoupment efforts going on in the state, trust me; Health and Human Services is a huge one,” Gardner said. “They recoup the services provided in abuse and neglect cases, the services for the children. That’s all recoupable.”

For the indigent criminal defendant, contact and repayment with the OCC begins within a few weeks of the attorney appointment, Gallagher said. Once the OCC receives documentation from the defendant or his or her attorney that includes a notification of eligibility, appointment of counsel notification of liability and a repayment order by the court, the OCC starts determining the defendant’s ability to repay the debt for the attorney and then contacts the defendant to make repayment arrangements. Under the law, the state can also collect a service charge of up to 10 percent of the total amount of fees and expenses owed.

Gallagher said the OCC staff tries to work within the confines of what is realistic for the defendant. If a defendant comes up on a payment date and can’t pay, Gallagher said, he or she simply has to call the office and payment is pushed out another month or another payment plan is negotiated.

Quiram said as long as a client stays in communication with the office, often a new arrangement can be reached. It is when defendants stop talking to the OCC that things can escalate.

“The law certainly is very clear as far as the process and what she has to do if she doesn’t hear back from them,” Quiram said, referring to Gallagher’s obligations. “At that point they may incur some more charges. So [OCC staff members] always warn the person, ‘You know if you’re not in contact with us and we have to go back to the court system, you may owe us more money and you know that’s a shame. So it’s better if you call us.’”

Under the law, the judge can make a determination and even call for an investigation of the defendant’s ability to repay. Fines can also be applied to the original fees.

It’s the last part that concerns Gardner, she said.

“One unanswered question for me is: No judge can throw somebody in jail for failure to pay fines and fees without providing access to an attorney to represent them (at a hearing to determine his or her ability to pay the fines and fees),” Gardner said, referring to proposed rules designed to address the so-called debtors’ prison phenomenon in New Hampshire. “Does that mean they are going to have to pay for another attorney, so they spiral the debt? How bizarre will that be?”

It remains unclear whether the new rules would have any effect on the OCC.

Gardner went on to say that she’s observed instances where this recoupment process may actually be standing in the way of a defendant getting an appropriate defense. She said she used to periodically observe court proceedings and about five years ago, she noticed, not a large number, but a “concerning” number of defendants refusing appointed counsel because they did not want to incur more debt.

“So, the right to counsel is being factored by, literally, ‘I don’t want to have more cases to cope with Cost Containment,’” Gardner said. “That was a bit chilling to me.”

Melanie Plenda is a freelance writer based in Keene, NH.

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