On April 19, 2018, the ACLU-NH, Professor Albert E. Scherr, and New Hampshire Legal Assistance filed a "friend of the court" brief challenging the debt collection practices of the Office of Cost Containment (OCC). The OCC is the State’s debt-collection agency tasked with collecting moneys from people who are too poor to pay for their own criminal defense representation. The OCC is, by definition, tasked with collecting money from people whom the courts have deemed indigent. In the brief, the ACLU-NH makes three arguments concerning how OCC debts are collected in New Hampshire.
First, courts enforcing OCC payment orders must comply with the protections of RSA 604-A:2-f. Through Senate Bill 200 enacted in 2017, the New Hampshire legislature commanded that “[n]o defendant shall be incarcerated after a final hearing for nonpayment of an assessment … unless counsel has been appointed for a defendant who is indigent or such defendant has executed a valid waiver of counsel for the final hearing.” See RSA 604-A:2-f, I (emphasis added). Because an OCC payment order is an “assessment,” OCC debtors are entitled to counsel and the other statutory protections of RSA 604-A:2-f if there is a prospect of being jailed for nonpayment. These protections are not being complied with.
Second, a court cannot, upon the OCC’s request, issue a cash bail order in the amount of the debt obligation—and then forfeit any bail amount collected to the OCC—because this practice is unconstitutional. The imposition of such cash bail orders, like the one requested in this case by the OCC, would violate the right to equal protection under Part I, Articles 1 and 2 of the New Hampshire Constitution and the Fourteenth Amendment to the United States Constitution. This is because these orders treat OCC debtors differently from other civil judgment debtors. Under the rules and laws governing civil judgment debt collection, cash bail orders are not issued in similarly situated circumstances. The New Hampshire Supreme Court has already held that the OCC, in order to comply with equal protection principles, cannot arbitrarily deprive its debtors from the protections provided to other civil judgment debtors. These cash bail orders also violate the right to be free from excessive bail under Part I, Article 33 of the New Hampshire Constitution and the Eighth Amendment to the United States Constitution. This is because these bail orders are not set at an amount that would be necessary to secure the debtor’s presence in court.
Third and finally, the notice provisions of RSA 604-A:9, I-c violate the right to equal protection under Part I, Articles 1 and 2 of the New Hampshire Constitution and the Fourteenth Amendment to the United States Constitution. This is because these notice provisions treat OCC debtors differently from other civil judgment debtors. RSA 604-A:9, I-c authorizes the OCC to simply mail notice to the debtor’s last known address on file, as it did in Mr. Brawley’s case. However, notice is much stricter under New Hampshire’s civil judgment collection process.