South Dakota one of few states to saddle counties with public defense costs

Bills for indigent defense more than doubled in past decade, task force told

By: - March 31, 2023 6:05 pm
The Brown County Courthouse is located in Aberdeen and is connected to other county offices, such as the Auditor's Office and the Brown County Jail. (Makenzie Huber/South Dakota Searchlight)

The Brown County Courthouse in Aberdeen. (Makenzie Huber/South Dakota Searchlight)

All U.S. citizens have a right to an attorney when charged with a crime, even if they can’t afford one. 

Only 11 states, including South Dakota, use local rather than state dollars to pay for the vast majority of public defense.

Just one state relies more heavily on counties to pay the cost than South Dakota, and that state – Pennsylvania – is now considering a five-year, $50 million investment in public defense.

South Dakota’s 66 counties, meanwhile, have seen their public defense costs for criminal cases more than double in the last decade.

That’s true even though the state-mandated mileage and drive time reimbursement for the private attorneys who serve as public defenders in all but three counties hasn’t budged in more than 20 years – at $1 a mile.

Those facts were among a flurry of data points on offer Friday during the first meeting of South Dakota’s Indigent Defense Task Force. Gov. Kristi Noem signed legislation to create the task force earlier this year after lawmakers passed a bill supported by South Dakota Supreme Court Chief Justice Steven Jensen.

Chief Justice Steven Jensen addresses the South Dakota Legislature in Pierre on Jan. 11, 2023. (Joshua Haiar/South Dakota Searchlight)
Chief Justice Steven Jensen addresses the South Dakota Legislature in Pierre on Jan. 11, 2023. (Joshua Haiar/South Dakota Searchlight)

Jensen is concerned about the sustainability of South Dakota’s “hodgepodge” approach to meeting its constitutional obligation to provide legal services. Three counties have dedicated public defender’s offices. The rest contract with private attorneys or have attorneys on call.

With fewer lawyers in rural areas and higher-paying legal work available through private practice or in federal court, Jensen said, “judges are having more and more difficulty finding counsel to represent indigent defense in criminal and juvenile cases.”

“They’re saying, ‘I just can’t afford to travel three hours to provide defense,’” the chief justice said.

That’s a reality the task force’s co-chair, Judge Mike Day of Belle Fourche, deals with regularly. It’s difficult to find attorneys who are experienced enough to handle cases and willing to give up that much windshield time.

“I have lawyers that are driving over 200 miles one way to get to court in Corson County,” Day said.

The reality of rising costs, meanwhile, has been felt in county commission rooms all across the state.

“I’ve been a commissioner for a couple of years now,” said Hughes County Commissioner and task force member Randy Brown. “But I was extremely shocked by how much we’re spending on court-appointed attorneys and how much that cost continues to keep rising for us every year without any way of figuring out how to fund it.”

Hanging in the balance is each defendant’s right to legal representation, as well as the importance of “effective counsel.” Jensen told the group that appeals often originate with claims of ineffective counsel. 

State-by-state comparison offers guidance

The group invited representatives from the nonprofit Sixth Amendment Foundation to speak during the first meeting. The nonpartisan group studies public defense state-by-state, with an eye to effectiveness of counsel and U.S. Supreme Court case law on defendant rights.

The Lincoln County Courthouse in Canton, SD, as seen on Oct. 28, 2022.
The Lincoln County Courthouse in Canton, as seen on Oct. 28, 2022. (John Hult/South Dakota Searchlight)

It also offers guidance for states that seek to address issues with their own indigent defense funding, but Director David Carroll told the group that it doesn’t file or intervene in lawsuits or push for change in states that haven’t asked for help.

“Every state is unique, and we do not want to presume we understand the strengths and weaknesses of a particular public defense system until we listen and learn from local stakeholders,” Carroll said. 

Senior Attorney Aditi Goel of the Center offered a rundown of how differing states have approached and adjusted their models. Many of the states that previously relied on counties to fund legal aid have moved toward greater levels of state funding. Last year, Idaho pledged to move toward 100% state funding by 2024, for example.

Most of South Dakota’s neighbors already have similar setups. North Dakota and Montana fully fund indigent defense at the state level. Iowa funds defense for everything but municipal violations that are punishable by jail time. Minnesota funds all public defense at the state level, but allows counties to pitch in extra money.

Moving from county to state-level funding can help ensure that counties with smaller tax bases – often financially stressed counties with higher poverty rates – can continue to fulfill the constitutional obligation to provide for public defense without facing dire budgetary straits.

“Counties with higher levels of poverty are also called on to spend more of their available funds on social services, such as medical care for the uninsured and housing needs for the unemployed, leaving less money available to spend on the right to counsel for indigent people,” Goel said.

Options for South Dakota

Neil Fulton is the dean of the University of South Dakota Knudson School of Law, and he serves as co-chair of the task force.

Fulton, a former federal public defender, urged task force members to approach discussions on potential changes in South Dakota with an eye to effectiveness and efficiency. 

“We should think about what we have an opportunity to do, not an obligation to do,” Fulton said at the start of the meeting. “We have an opportunity to really talk about how we make recommendations on what an effective system for representation is. Everybody here knows that when you have excellent, effective, ethical counsel on both sides of criminal defense, it’s better for everyone.”

Rep. Will Mortenson, chair of the South Dakota House State Affairs Committee, listens to testimony on Jan. 20, 2023, at the Capitol in Pierre. (Joshua Haiar/SD Searchlight)
Rep. Will Mortenson, chair of the South Dakota House State Affairs Committee, listens to testimony on Jan. 20, 2023, at the Capitol in Pierre. (Joshua Haiar/SD Searchlight)

That was top of mind for House Majority Leader Will Mortenson, R-Pierre, after hearing from Carroll and Goel of the Sixth Amendment Center. Mortenson is one of two task force members appointed by the Legislature, the other being Sen. Jim Mehlhaff, R-Pierre. 

Mortenson told the group he’d like to return to the table in upcoming meetings to look at the experiences of states that have changed their approach to public defense in the past few decades.

Ideally, he said, he’d like to learn the outcome of public defense reform in states that have a few major population centers and a large number of smaller, more rural communities.

“Did it accomplish what it set out to accomplish?” Mortenson said. “Or did they spend a lot more money to get the same system, and different frustrations, but still frustrations?”

Carroll told the group that the Center would be glad to offer more assistance, but he also urged them to compile information on how South Dakota counties approach indigent defense.

Lake County State’s Attorney Wendy Kloeppner offered to reach out to the South Dakota State’s Attorney’s Association for input on individual county issues, since that group’s annual meeting is a little more than a month away. 

The Madison attorney said the task force should dive deep into the data and consider the potential ripple effects of any adjustments on the established practices from place to place. 

“I feel overwhelmed just thinking about where is the starting point?” Kloeppner said. “Is it personnel? Is it funding? Obviously, money is very important, but how much money and where from?”

The task force will meet again in April. 




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John Hult
John Hult

John is the senior reporter for South Dakota Searchlight. He has more than 15 years experience covering criminal justice, the environment and public affairs in South Dakota, including more than a decade at the Sioux Falls Argus Leader.