The LRC hasn’t even posted the members or calendar of the interim county-funding study committee created last week by the Legislature’s Executive Board. But the Judiciary convened its HB 1064-mandated Indigent Defense Task Force last Friday and discussed one public service uniquely putting the squeeze on county budgets, the cost of guaranteeing the Sixth Amendment by providing public defenders:
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 [John Hult, “South Dakota One of Few States to Saddle Counties with Public Defense Costs,” South Dakota Searchlight, 2023.03.31].
The Sixth Amendment Center finds South Dakota counties bear 96.5% of the cost of providing indigent defendants with counsel:
The Sixth Amendment Center points out that states have both Constitutional and practical obligations to provide legal defense:
State government, not local government, is responsible for ensuring that every indigent defendant charged with a jailable offense is provided with a constitutionally effective lawyer. This obligation always rests with the state, even when a state delegates its right to counsel responsibilities to local governments. To fulfill its constitutional duty, the state must have a state-level entity that has the authority and ability to evaluate whether local indigent defense systems can, and in fact do, meet constitutional muster.
…National standards call for state funding rather than local or hybrid state-local funding because counties and municipalities most in need of indigent defense services are often the ones least able to afford them [Carroll and Goel, 2023.03.14].
But task force co-chair and USD Law dean Neil Fulton doesn’t want to hear that word obligation in this discussion:
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” [Hult, 2023.03.31].
It’s not an obligation, it’s an opportunity—like how your kids don’t have to do their chores, they get to? Sure, Neil, hand me that whitewash bucket….
Whatever word games Dean Fulton thinks he needs to play to get the state to do its duty, the task force needs to direct the Legislature’s attention to our neighbors, who find ways to cover those public defender costs:
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 [Hult, 2023.03.31].
A liberty-minded Legislature should be keenly interested in ensuring that every defendant gets Constitutional protection against the overwhelming law enforcement and prosecutorial power of the state. When the interim county-funding committee finally convenes, it should review the notes from the Indigent Defense Task Force and figure out how to take public defenders off the counties’ budgets.