South Dakota set to scrutinize its approach to court-appointed attorneys

The state of South Dakota may soon form a team to examine the way it assigns and pays its court-appointed lawyers.

Lawmakers on the Senate Judiciary Committee signed off Tuesday on a bill that would create a public defense task force in South Dakota, adding an emergency clause that would allow work to begin immediately after Gov. Kristi Noem’s signature rather than in July when regular bills take effect.

The 6-0 vote for House Bill 1064 in that committee also came with a recommendation that the proposal appear on the Senate’s consent calendar, clearing the way for final passage without debate on the Senate floor. The bill passed the House of Representatives 67-2 on Jan. 19. 

The idea came to the Legislature from South Dakota Supreme Court Justice Steven Jensen, who told lawmakers during his State of the Judiciary speech that the cost of indigent defense in the state weighs heavily on the minds and budgets of county commissioners all across the state. 

During Tuesday’s Judiciary Committee meeting, State Court Administrator Greg Sattizahn relayed the same message, noting that the cost of court-appointed attorneys is among the more difficult budgetary dilemmas for the state.

“It’s a very expensive endeavor for the counties to provide indigent services to those in need, as well as it’s constitutionally required, so it’s not an option,” Sattizahn said.

The 13-member task force would include members appointed by Jensen, as well as county representatives, lawyers with experience in public defense, two lawmakers, one prosecutor and one representative from the Attorney General’s Office.

Funding questions

The budget for public defense in South Dakota is borne almost entirely by counties. A dedicated public defender’s office can be the most cost-effective way to manage the constitutional obligation, but just three counties in the state have one: Minnehaha, Pennington and Lawrence.

The remainder farm out public defense work to private attorneys who typically bill at an hourly rate. Even counties with public defense offices must appoint private lawyers for abuse and neglect cases, as well as in “conflict” cases with multiple defendants, where the legal interests of a client with a public defender would clash with those of a co-defendant. 

The price tag is high, particularly in counties with few lawyers that need to seek help from afar and pay mileage. 

The annual cost to counties for indigent defense adds up to $20 million, Sattizahn told the committee. The only available outside funding source barely makes a dent.

Every criminal offense committed in the state carries a $50 surcharge, of which $7.50 is directed to counties to offset the cost of indigent defense. That $7.50 per crime subsidy added up to $730,000 in Fiscal Year 2022, Sattizahn said, and “that’s divided amongst all the counties.”

“Financially, this is a difficult thing for the counties,” he said. 

South Dakota is one of two states in the U.S. that does not use state funds to reimburse counties for the cost of indigent defense, he said. 

The task force will need to look at what a more sustainable system might look like, Sattizahn said. 

Lawyer shortage complicates issue

Many states have state-level public defense offices, but South Dakota does not. Sattizahn told the committee that it’s getting more difficult to find private lawyers to take cases in smaller counties. 

Potentially lower hourly rates and sub-par mileage reimbursements discourage those attorneys from accepting the work, but the concentration of lawyers in large cities is also a factor.

“There are wide areas of the state where crimes are still committed and people are appointed attorneys, but there are really no lawyers in the area, or there are very few,” said Eric Whitcher, who runs the Pennington County Public Defender’s Office.

Even in the cities, Whitcher said, it’s difficult to staff for indigent defense. Whitcher runs an office of 19 lawyers that’s been two short for months. One attorney will join soon, but the other position remains open.

The office’s budget, set at $3.5 million for 2023, used to be enough to let Whitcher pay “competitive” salaries. That’s no longer the case. 

“You need people with servant’s hearts to do this work,” Whitcher said. 

Having a public defender’s office may offer counties the most bang for their legal buck, but it doesn’t spare them the price of private attorney appointments. 

In Rapid City, about 20% of the cases the public defender gets initially assigned are conflict cases. Murder cases are usually conflict cases, as well, Whitcher said. Most conflict cases go to Dakota Plains Legal Services, a small office contracted with the county, but the murder cases go to private lawyers with more time to devote to deep investigations.

There are also times when Whitcher files a motion with the court to signal that his staff are overbooked, which directs even more cases to Dakota Plains or private offices.

Minnehaha County deals with some of the same issues, according to Public Defender Traci Smith. Sioux Falls is home to her office, but also to a county-funded Public Advocate’s Office for conflict cases. The county still struggles with its conflict budget.

“I know from speaking with leaders in other jurisdictions that have dug into all the different hodgepodge of options that taking a hard look at the data will be beneficial,” Smith said. “There will be challenges having 66 different counties with very different needs.”

Whitcher and Smith are both pleased that the task force has received wide support. Each area has its own struggles that need exploring before decisions on how to rework the state’s approach can be made.

“There are a lot of important questions here, and I’m glad it’s going to get the attention it deserves,” Whitcher said.