An equal justice statue sits outside the doors of the Minnehaha County Courthouse in Sioux Falls. (Makenzie Huber/South Dakota Searchlight)
By: John Hult
SIOUX FALLS, S.D. (South Dakota Searchlight) – A just-released report on South Dakota’s public defense system identified many of the same “structural deficiencies” outlined in a similar report 47 years ago.
The nonprofit Sixth Amendment Center released its state-funded study Monday. The report was released just under a week after the state announced its hiring of the Unified Judicial System’s first statewide public defender, Christopher Miles. He will run the first state-level public defense office and lead a team of attorneys who will handle appeals to the state Supreme Court by “indigent” defendants — those who can’t afford an attorney. Counties will remain responsible for providing lawyers for those defendants prior to their appeals.
The state’s longstanding practice of delegating the management and funding of public defense to counties hamstrings the state’s ability to provide effective representation to those who can’t afford it, the report says.
Tying public defense to counties “results in counties funding indigent defense systems at levels they can afford instead of at levels that meet the counties’ indigent defense needs.”
The report also suggests that counties stop sending bills to people who use public defenders, set standards for public defenders and adopt a uniform advisement of rights for defendants, and that state lawmakers should fund the Commission on Indigent Services well enough to allow it to enforce state standards.
The last major review of the state’s public defense system, undertaken in 1977, concluded that “while it is not impossible, it is difficult to be an effective yet aggressive defender lawyer in South Dakota.”
The 2024 report says, “Based on our evaluation, we believe this remains an apt description of indigent defense in South Dakota.”
The report was undertaken at the behest of the Commission on Indigent Defense. That group was created in 2023 at the urging of state Supreme Court Chief Justice Steven Jensen, and a comprehensive review of indigent defense practices was among its initial recommendations. Lawmakers also signed off on creating the state office of public defense a year later based on the commission’s findings, setting a $1.5 million budget for the seven-person office.
“This report includes a thorough, and sometimes candid, look at some of the current challenges the state faces as it seeks to fulfill the constitutional obligation to ensure the right to counsel for indigent people who are facing the prospect of jail or prison,” Chief Justice Jensen said in a press release on the report.
South Dakota early adopter of public defense
The Dakota Territory established a right to counsel for those who couldn’t afford it in 1868, 95 years before the right was extended nationwide by the 1963 Supreme Court decision in the case of Gideon vs. Wainwright.
In 1879, pre-statehood lawmakers ordered counties to pay “reasonable and just compensation.” South Dakota became a state ten years later.
Current U.S. Supreme Court case law directs states to shoulder the responsibility of ensuring legal defense. South Dakota delegates public defense costs to counties, which creates difficulties and disparities from place to place, the report says. Paying public defenders through local property tax dollars, particularly for smaller, rural counties, has been a burden since the state last looked at the issue.
“Because the state did not make changes to the structure of the indigent defense system in response to the 1977 report, the right to counsel issues that existed nearly 50 years ago have been passed down, institutionalized, and inherited to present day,” the report says.
Costs have risen in recent years, as well. The total cost for indigent defense statewide jumped from $18.2 million in 2018 to $21.5 million in 2022.
It’s not just the overall cost that impacts counties, the report says, but the unpredictability of costs. One or a handful of major felony cases with high defense lawyer costs are enough to throw county budgets, it says. In Hughes County, the number of cases with court-appointed attorneys fell 7.6% over the report’s six-year study period, but the cost increased 27.4%. County revenue grew 3.6% in that time frame.
Fall River County had to dip into its contingency fund to pay the state-set hourly rates for public defense.
Part of the cost increase is tied to a shortage of rural lawyers. Nearly 70% of the state’s attorneys live in Minnehaha, Pennington or Hughes counties, meaning lawyers willing to take contract cases in counties without dedicated public defenders’ offices – every county save Minnehaha, Pennington and Lawrence – often need to travel from their home cities to visit clients and appear in court.
When lawmakers passed the bill creating the statewide public defender’s office, they also allocated $3 million to reimburse counties for public defense costs. The amounts disbursed to each county were announced last week. They’re based on counties’ public defense costs and range from $310 for the county with the lowest costs (Harding) to $915,000 for the county with the highest costs (Minnehaha).
Suggestions: Set state standards, consider ditching cost reimbursement
The report does not recommend that the state switch to a state-funded system for public defense, however.
Instead, it trains its recommendations on smaller adjustments that could improve the delivery of legal services to indigent defendants.
The report found inconsistencies in how judges explain the right to an attorney, for example. For counties with public defender’s offices, an attorney represents people at their initial appearances and bond appearances. In most other counties, those appearances tend to be the venues where a person is advised of their right to an attorney.
“Despite giving the defendant the opportunity to request an attorney, in most magistrate courts no attorney is present and available to accept court appointments at initial appearance,” the report says.
There is no standard advisement of rights at the state level. The report recommends adopting one, as there are some inconsistencies in what defendants hear from judges in the early stages of a case. There are also inconsistencies in determining who’s eligible for a public defender, as there is no state standard for what financial factors make a person eligible.
“As a result, a judge in one county may find a person indigent and provide counsel, but a judge in a different county may find that same person not indigent and deny them counsel,” the report says.
State law allows counties to charge indigent clients for attorney services after a case has ended, but judges vary in how they explain that to defendants. No judges advised defendants of the state-set hourly rate for attorney fees they’d be expected to pay back after the case during courtroom visits by Sixth Amendment Center researchers.
Defendants typically aren’t aware of the total cost of their representation at the time of their sentencing, even though liens can be placed on their property to pay them.
The report recommends that the state consider ending the practice of fee reimbursement. Tying representation to costs changes the dynamic between clients and their attorneys in ways that could impact their rights.
“During this evaluation, appointed attorneys across the state reported that recoupment impacted their ability to adequately represent their clients because the cost of representation dictated the attorney-client relationship and decisions on the case,” the report says.
Stop pretrial negotiations with defendants who have no lawyer
There are also counties where a magistrate judge – the kind of judge who sets pretrial bond conditions in both felony and misdemeanor cases – allows prosecutors to meet defendants and negotiate a plea before the defendant has a chance to request a court-appointed attorney.
“Sometimes referred to as a ‘preconference,’ this meeting occurs off the record and without defense counsel. There is no state law or court rule that governs this practice,” the report says.
One researcher with the Sixth Amendment Center observed a defendant tell a judge he had a head injury and “could not remember much” after the judge explained his rights to him and others in a group message at the start of a hearing. Even so, he took a plea deal that day on two misdemeanor charges, with no defense attorney present, even after he repeated that he had no memory of the incident.
The report recommends ending the practice of negotiation between prosecutors and clients who’ve not yet had the chance to request a lawyer.
The Commission on Indigent Defense, the report says, should be funded by the Legislature at a level high enough to allow it to do oversight, and the commission should work to set statewide standards for effective public defense.
Comments