NH High Court Deals Blow to Debtors’ Prison Practices

CONCORD, N.H. (CN) – New Hampshire’s high court ruled Tuesday that the state must afford due process to indigent defendants before jailing them over their nonpayment of legal bills.

The case stemmed from John Brawley’s repay the state Office of Cost Containment $450 after public defenders helped get him acquitted of two counts of simple assault.

While the state is required to provide legal counsel in cases where a defendant’s liberty is at risk, those individuals can then be ordered by the court to repay the state fees and expenses.

In Brawley’s case, the OCC requested the trial court issue a bench warrant for his arrest and a bail amount in the full amount of his reimbursement obligation, which would be forfeited to the OCC, or that he be jailed for three days before being allowed a bail hearing.

Rejecting that demand, however, the trial court determined that it did not have jurisdiction over the acquitted defendant, that his repayment obligation constitutes a “purely civil debt,” and that the OCC would have to collect the debt in civil court.

Reversing Tuesday, the New Hampshire Supreme Court concluded that the fee for court-appointed counsel is an “assessment” that falls under the state statute’s protections for poor defendants. Therefore, debtors have the right to both a lawyer and a judge that can rule on his or her ability to pay the fine.

The 8-page ruling also touched on arguments by the American Civil Liberties Union in an amicus brief that, regardless of whether a debtor was acquitted, courts enforcing payment orders must comply with RSA 604-A:2-f.

Passed in 2017, the law includes a number of provisions meant to stop the state from applying debtors’ prison practices to indigent defendants.

“Incarceration of a defendant may occur only after the court has made a specific inquiry into the defendant’s financial circumstances and the reasons for the defendant’s noncompliance with repayment or community service orders, and the court finds that the defendant has willfully failed to pay or perform community service,” Justice Patrick Donovan explained Tuesday, writing for the unanimous bench.

Though the state argued that the law should not apply to Brawley because it was enacted more than a month after the proceedings at issue, Donovan and his colleagues disagreed.

“It logically follows that the procedural protections set forth in RSA 604-A:2-f similarly apply to indigent defendants confronting a final hearing for nonpayment of the costs associated with the services of court-appointed counsel — regardless of the outcome of the underlying criminal matter,” Donovan wrote.

The ruling met with applause from Albert “Buzz” Scherr, a professor at the University of New Hampshire School of Law who represented the ACLU in its amicus brief.

“This is a historic decision that protects the poor from the State’s effort to collect public defender debts,” Scherr said in a statement.

Scherr added: “Debtors’ prisons waste taxpayer money and resources by jailing people who may never be able to pay their debts. Today’s decision is a victory that will help ensure that these improper practices remain in the dustbin of history.”

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