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ACLU challenges state's debt collection practices for indigent defendants

New Hampshire Union Leader

June 15. 2018 12:23AM

CONCORD ­— When the state wants to go after an indigent defendant for attorney’s fees, does it have the right to use the power of arrest and the threat of incarceration, or should it follow the same procedures as any bank, credit card company or other creditor trying to collect on a bad debt?

That question was argued before the state Supreme Court on Thursday, with the American Civil Liberties Union on one side and the state of New Hampshire on the other.

Albert “Buzz” Scherr, professor of Law at UNH School of Law, arguing for the ACLU position, maintains that the state agency charged with collecting repayment for state-appointed counsel in criminal cases has no right to operate differently than any other debt collection agency.

Laura Lombardi, senior assistant attorney general, took the position that the Legislature empowered the state debt collection agency, the Office of Cost Containment, to use criminal procedures in its debt collection practices to “ease the burden on the state in recovering these public funds.”

“The state is constitutionally obligated to provide counsel to indigent criminal defendants, which results in a significant burden on public revenues,” according to Lombardi. “The sheer number of these cases alone provides a rational basis for treating the collection of this public debt different from the collection of a purely private debt.”

She cited the portion of New Hampshire law that states “the state’s claim to reimbursement may take precedence, under appropriate circumstances, over the claims of private creditors, and that enforcement procedures need not be identical.”

The case stems from the 2015 arrest of Derry resident John Brawley on two counts of simple assault. The court appointed a public defender to represent Brawley and in 2016 he was acquitted of both charges.

State law requires people who were served by public defenders to eventually pay the cost of their defense, “on such terms as the court may order consistent with the defendant’s present or future ability to pay.”

Brawley was ordered to repay the state $453, and the debt was turned over to the OCC for collection after he failed to do so.

After Brawley failed to appear for a show cause hearing in 2017, the Superior Court issued an arrest warrant with bail set at $50.

Brawley was ultimately arrested and paid the $50 bail as a condition of his release. The money was turned over to the OCC, reducing his debt to $403.

When he allegedly failed to make additional payments on the balance, the OCC sought to have him jailed until he paid the full amount.

Superior Court Judge Andrew Schulman, presiding over the case, denied the OCC’s request, and ruled that Brawley’s debt to the state is a civil debt because he was acquitted.

The state appealed that ruling to the Supreme Court, which heard arguments on Thursday.

The ACLU agrees with the state that an acquittal doesn’t convert the debt to a civil debt, and that the case should be remanded to Schulman for reconsideration. The two parties differ on how the state should go about collecting the debt.

“This is a debt to the taxpayers of the state,” Lombardi told the five justices. “If the defendants have the ability to pay, they should not be receiving a free ride on the backs of the taxpayer. It’s entirely appropriate that there should be a process for the state to recover this money on behalf of the taxpayers … There is a rational basis to treat these cases differently from civil cases.”

Scherr agreed that there should be a process, but it should follow the steps outlined in state law for civil debt collection. The state’s powers to summon, arrest and incarcerate should not be used in the debt collection process, even for court-appointed attorney fees, he argued.

The ACLU is hoping for a precedent in the case that will establish, as Scherr said, “that bail can only be set to ensure someone will show up, not to collect a debt.”

The justices took the case under advisement after 30 minutes of oral argument in which they pressed both attorneys on a number of statutory and constitutional issues.

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