South Dakota faces very real shortages when it comes to legal services for those who cannot pay. There are only a few dedicated public defenders’ offices statewide and an ever-growing number of cases.
Every citizen has a constitutional right to legal representation but with only three of South Dakota’s 66 counties having a public defender’s office, the challenge is monumental. In practical terms, that means heavy workloads, long drives, and court appointed cases for attorneys.
Dick Tieszen, an attorney and lobbyist for the state Sheriff’s Association, laid out the day-to-day realities of the current system.
“The burden of the cost of defending that person is today laid squarely on the shoulders of the county," Tieszen said. "So, the county really has been, for all of these decades, paying to defend people who commit crimes against the State of South Dakota. Not against the county in which they are being charged.”
That cost, left at the feet of the local taxpayers, isn’t pocket change. Tieszen said it’s not the first time the state has stepped in on this issue.
“We passed a bill here that addressed the situation where counties were suddenly burdened with the cost of defending and prosecuting in murder cases," Tieszen said. "In many times, it would almost bankrupt the county. So, a bill was passed that allowed counties to join together to help cover that cost.”
However, that law passed 30 years ago, and a lot has changed. Many lawmakers, judges and lobbyists say this is the year to make state support for public defense a priority at the legislature. There are multiple bills this year to help bridge this gap.
House Bill 1057 would remove the burden of public defense from counties and create a statewide indigent defense commission. South Dakota Supreme Court Chief Justice Steven Jensen said this is a key priority this year. The state’s court administrator Greg Sattizahn explained.
“That group would really be the ones that talk about – ‘How do we create that statewide office,'" Sattizahn said. "There’s the boots-on-the-ground piece of that, would be the creation of a chief public defender's office, that would start with handling just the appellate work.”
Those appellate cases, which have already had a ruling, can be done from anywhere in the state. However, Sattizahn said that’s just the beginning.
“It provides that opportunity for flexibility, and it also looks at the system from a wider lens as far as the types of cases that are coming up and the issues the lawyers are seeing," Sattizahn said. "That commission really creates the start. It will have to strategically plan where we are going as a state with indigent defense. What are appropriate caseloads for defense lawyers in our state?”
Sattizahn said while he is confident in the state judicial system more broadly, the current situation leaves meaningful gaps in representation.
“Overwhelmingly we heard that we’re getting a good legal product, but the issue is we don’t have a great way of ensuring that lawyers are brought into a case on a timely basis," Sattizahn said. "Or that they have access to resources when they’re looking for some assistance. So, we’re making their job probably harder than it needs to be.”
Sattizahn said in most counties, lawyers take on public defender cases as volunteers, and only because the court requires them to.
Another legislative proposal, SB31, would reallocate money from the state’s wholesale alcohol sales tax to help with the costs of public defense. Canton’s Republican Sen. Jim Bolin introduced that bill.
“After discussion with numerous people we’ve made some changes to the bill," Bolin said. "The concept remains the same, but the bill in its form now would leave 10 percent for the state, leave 25 percent for the cities, don’t touch the cities at all, but use the remaining portion for indigent legal expenses that are burdening counties extensively.”
However, SB31 was killed in the joint appropriations committee.
“The expenses of court-appointed attorneys for those that can’t afford an attorney is only going to increase, and this will only increase the dependence of counties to use local property taxes to pay for these expenses," Bolin said. "In that case, it’s probably going to increase the property taxes as we look to the future.”
Rapid City Republican Senator Helene Duhamel, who worked on the summer study that first identified public defense as a significant problem, said that blow will be felt by average South Dakotans the most.
“I think it’s heartbreaking, honestly, I do," Duhamel said. "Whether it’s the state taxpayer dollars or the local, it’s the same taxpayer. Yes, maybe the state collects less money, but it saves money for the taxpayer, and that’s what really should be the bottom-line goal. What’s the best way to do it, what’s the way the taxpayer wins?"
A recent legislative study shows there is serious need for reform in the state public defense system. Bolin says South Dakota is the only state in the nation that puts the entire burden of public defense on county taxpayers after Pennsylvania moved away from that model last year.
However, many close to the issue, like Pierre Republican Sen. Jim Mehlhaff, say the fight isn’t over.
“I just looked at a caucus rating sheet from two weeks ago, and Senate Bill 31 was number 5 on the most popular proposals," Mehlhaff said. "I’m going to keep talking about it. It needs to be talked about a little more before its disposed of.”
By the time session gavels out in early March though, lawmakers say they feel confident some form of public defense reform will be on the governor’s desk.