(C) South Dakota Searchlight
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Lawmakers advance plan to put prison legal defense costs on state ledger [1]
['John Hult', 'More From Author', '- January']
Date: 2024-01-12
The state would pay the legal defense fees for inmates who commit crimes behind the prison walls under a measure endorsed by a group of legislators Friday morning at the Capitol in Pierre.
The House State Affairs Committee voted 13-0 to push House Bill 1039 to the budget committee for further consideration.
The bill was the brainchild of Rep. Ernie Otten, R-Tea, who was away for a family emergency and unable to testify in favor on Friday. Pierre House Majority Leader Will Mortenson took up the mantle, arguing that counties ought not bear the legal defense burden for prison crimes. The state operates prisons, which house inmates serving sentences. Counties operate jails, which mostly house defendants awaiting prosecution.
Like all South Dakota citizens, inmates who can’t afford an attorney are constitutionally entitled to one when charged with a crime. Currently, counties are responsible for those legal bills, though Mortenson pointed out that most of the inmates who rack up the bills have little or no ties to the counties where their prisons are located. Further complicating matters, the state doesn’t pay property taxes on its prison facilities, which means the state does not contribute to counties’ primary source of funding.
The Attorney General’s Office is responsible for prosecuting prison crimes. Mortenson told committee members that the burden of defending those inmates ought to land with the state, as well.
“These are state facilities, and this is a proper obligation of the state,” Mortenson said.
Eric Erickson, who represents the South Dakota Association of County Officials, also testified in support of the measure. The money it takes to defend prison crimes varies wildly from year-to-year, he said, but can sometimes reach budget-breaking heights.
Erickson cited a recent situation involving a drug ring at Mike Durfee State Prison in Bon Homme County that saw possible legal fees of between $2 million and $3 million.
Bon Homme County’s annual budget is about $5 million.
“This is a situation that has been a long-standing problem for our counties,” he said.
Reached after the meeting, Erickson said the figure for potential costs came from the association’s membership, and that he didn’t know what the final cost to defend the inmates had been.
A story from the Yankton Press & Dakotan that referenced the 2018 incident noted that the high initial cost estimates would likely be lower, since not all defendants would go to trial. It also noted that county commissioners had asked then-Department of Corrections Secretary Denny Kaemingk to cover the cost to defend the 20 inmates who qualified for county-paid attorneys. The DOC declined to pay. The Bon Homme County auditor did not immediately respond Friday to questions about the final cost to defend the inmates.
Costly multi-defendant cases like that may not be a regular occurrence, but the issue of public defense costs has simmered for years for county commissioners. The idea for HB 1039 came in part through discussions on county budget woes that took place over the summer and into the fall last year. The state Unified Judicial System is now backing the creation of a state-level public defender’s office as a way to help ease the burden of indigent defense for counties, as a result of those discussions and the work of an indigent defense task force.
South Dakota is the only state to put the entire financial burden of indigent defense on counties.
The planned placement of a new men’s prison in Lincoln County makes the question of what counties pay to defend inmates more salient, Mortenson said.
“Of course, Lincoln County is not alone in having a prison sited there,” Mortenson said.
Pennington County is in line for a new prison, as well. The state broke ground on a new women’s prison there last year. That county is already home to a minimum-security men’s unit.
Brittni Skipper of the Department of Corrections testified against the bill, arguing that it would be irresponsible to shift costs when the costs are unknown. The counties with state prison facilities – Hughes, Minnehaha, Pennington, Yankton and Bon Homme – don’t have solid statistics for how much they pay to defend inmate defendants, she said.
The DOC does support creating a statewide public defender’s office, Skipper said. But that office would pick up the legal fees for criminal appeals, not pay to defend people during the criminal cases that might spark appeals.
Lawmakers ultimately opted to send the bill to the House Appropriations Committee. Mortenson replied to Skipper’s testimony by noting that the costs are both unknown and “unknowable.” It’s impossible for counties or the state to anticipate the number and severity of crimes that might be committed in prison during any given year, he said.
Rep. Gary Cammack, R-Union Center, moved to send the bill to appropriators for further study. Cammack said shifting those unknowable costs would simply put the state – an entity with far greater financial resources to absorb them – in the same position counties already find themselves in.
“That’s exactly the problem the counties have been dealing with for a century,” Cammack said.
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