Much like Maine, New Hampshire courts are struggling to find enough lawyers to represent the state’s poor against criminal charges.
Nearly 1,000 cases involving defendants in New Hampshire who cannot afford to hire their own lawyer are being continued because state courts are unable to find public defenders, contract counsel or private assigned attorneys to defend them, said Sarah Blodgett, executive director of the New Hampshire Judicial Council.
“This is an unprecedented crisis for us,” Blodgett said.
Maine officials have often looked to New Hampshire as a possible model while considering changes to its indigent public defense system.
New Hampshire is the only state that contracts with a private, non-profit law firm to provide all public defender services, according to the Sixth Amendment Center. Maine, by contrast, is the only state that employs no public defenders, instead relying on many independent court-appointed lawyers to defend children and adults charged with crimes who cannot afford their own attorney.
New Hampshire started a “hold list” of cases in December 2021 after state public defenders reached their maximum caseloads, and contract and private counsel’s workloads hit capacity as well. At times, as many as 2,000 cases had not been assigned a lawyer in the past year. While that number has decreased, it remains at an unacceptable level, Blodgett said.
The chief deputy clerk for the Maine federal courts emailed a plea in late June to lawyers licensed in both Maine and New Hampshire to consider accepting cases in New Hampshire. Blodgett said only one Maine attorney had responded as of mid-July.
Maine courts, too, have seen an increase in open cases, but so far court-appointed attorneys have been found for every case that needs a lawyer at the state’s expense, said Justin Andrus, the executive director of the Maine Commission on Indigent Legal Services, or MCILS.
Maine plans to hire its first five public defenders later this year.
Maine has seen the availability of defense attorneys for new indigent case assignments decline — hovering around 200 to 213 lawyers in July. That’s an all-time low, dropping further than the mark that The Maine Monitor reported earlier that month.
Too few attorneys for the caseload
In the past, New Hampshire public defenders handled most of the cases for people who could not afford their own lawyers except when there was a conflict. The state’s public defender contract sets a caseload limit of 70 cases per attorney, Blodgett said.
New Hampshire had 67 attorneys leave the public defender offices in the past four years with a cumulative 626.5 years of legal experience between them, according to data provided by Tracy Scavarelli, the director legal services at the New Hampshire Public Defender.
The offices have hired some replacements but have not regained nearly as much experience as it lost.
The state courts have had to assign more cases to contract counsel and private attorneys, Blodgett said. There were 425 cases given to assigned counsel between July 1, 2020 and June 30, 2021. That number more than tripled to 1,388 cases going to assigned counsel the following fiscal year.
Scavarelli said the public defender offices anticipate eliminating the “hold lists” and some county public defender offices have already cleared their backlog.
“We anticipate eliminating the intake reduction plan in all offices once offices are appropriately staffed (based on experience and not merely ‘bodies’) based on average intake and our commitment to maintaining manageable caseloads to ensure clients receive the highest standard of practice,” Scavarelli wrote in an email to the Monitor.
“By reducing intake temporarily, lawyers were able to dedicate their time to a manageable number of clients and responsibilities, which allowed for more timely resolutions. That in turn allowed lawyers to be assigned cases from the hold list,” she added.
MCILS does not enforce limits on the number of cases attorneys can be assigned or accept from the courts. Instead, lawyers can opt-in and -out from receiving assignments to certain cases or courts.
Rob Ruffner said one attorney at his Portland law firm had 79 cases for 49 clients. Most were assigned by the court during a 3½-week stretch after the lawyer returned from leave. Another lawyer has 104 cases and had to stop accepting more a month ago.
“The rate of new assignments is like drinking from a fire hose,” said Ruffner, who stopped taking nearly any court-appointed cases in July 2021.
A limited study of defendants in Aroostook County earlier this year found that some had pending criminal charges and didn’t have an attorney assigned, The Maine Monitor previously reported. All those defendants have since been appointed an attorney.
A proposal from MCILS staff to implement the state’s first caseload limits could further squeeze Maine’s system. MCILS staff have proposed a framework that would assign a point value to every case type and set an annual maximum of points that an attorney can work.
“I hear people say things like, ‘Justin, if you have caseload standards, then people will become maxed out and then as a result people will not have counsel,’ ” Andrus said. “I don’t yet know whether that is true but the reality is that the solution to that problem is not to allow people to maintain constitutionally impermissible caseloads but rather to have more people.”
State-by-state pay gap
New Hampshire is contracting attorneys from Vermont, Massachusetts, Maine and the New Hampshire federal public defender panel to try and reduce the backlog of cases needing a lawyer, Blodgett said.
Blodgett said she’s finding that some attorneys aren’t willing to accept the state’s pay, which is $60 an hour; Maine recently increased the hourly rate for court-appointed work to $80 an hour. Blodgett said New Hampshire is having a hard time competing with Maine’s new rate.
The pay gap between Maine and New Hampshire may soon grow even larger.
MCILS’s seven commissioners signaled they will likely endorse another proposed pay increase — this time to $150 an hour — for court-appointed attorneys, and seek approval from the state Legislature to implement the raise next year.
The MCILS staff-proposed budget would cost $62.1 million annually and include two trial-level public defender offices, an appellate public defender and an office dedicated to post-conviction reviews. Commissioners will vote in August whether to support MCILS staff recommendations to fund the projects.
Pay and benefits have repeatedly been identified as key areas to bring new attorneys into Maine’s public defense system as MCILS struggled to attract and retain lawyers.
“I believe that if I were permitted to pay an appropriate rate to counsel and if I were permitted to hire an appropriate number of counsel, at the appropriate salary and with appropriate support, that I would have the people I need to ensure that consumers of indigent legal services have the lawyers they need,” Andrus said.
“Am I confident I can get those people today? No. I am not confident I can get those people because the key to attracting and retaining those people lies outside my power,” Andrus added.
State lawmakers have supported MCILS’s new budget initiatives in recent years, but the projects have failed to garner support from Gov. Janet Mills, a Democrat, or make it into her proposed budget. Many of the MCILS initiatives have also not been funded in the Legislature’s budget despite overwhelming support in a legislative committee.
Whether Maine changes to a public defender system that more closely resembles New Hampshire or takes another path completely isn’t the issue, said Bob Cummins, a criminal defense lawyer with six decades of experience. He resigned as a MCILS commissioner earlier this year because he perceived inaction by the executive and legislative branches of Maine’s government to reform the public defense system.
“It’s not the structure of the system, it’s the fact that there’s not enough lawyers. Whether it’s New Hampshire, Massachusetts or anywhere else. Here’s what we have to come to grips with — People that are charged with a crime are entitled to be represented by competent counsel,” Cummins said. “That’s it. So, if we don’t do that and we don’t create the system that accomplishes that, then we’re violating the Constitution and that’s what’s happened in this state.”
Samantha Hogan reports on government accountability and the criminal justice system for The Maine Monitor. Reach her with feedback and story ideas by email: firstname.lastname@example.org.