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.
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.