(C) South Dakota Searchlight
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State court leaders say reforms to public defense will take years, patience, engagement • South Dakota Searchlight [1]
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Date: 2024-09-25
Leaders within the state court system asked for patience on Wednesday as they pledged to address deficiencies in South Dakota’s system for delivering legal representation to people who can’t afford lawyers.
State Supreme Court Chief Justice Steven Jensen and other officials conducted a virtual press conference two days after the release of a report that outlined challenges facing the state’s public defense framework.
Despite the sweeping nature of some of the report’s recommendations, Jensen said the state Unified Judicial System is committed to following through.
“Honestly, it’s going to be difficult, it’s going to be a lot of work, and it’s going to require some discussions about who will fund that system going forward,” Jensen said. “But given our history in South Dakota, the widespread support and recognition of the need for change, I’m optimistic we can get it done.”
States are required by the U.S. Constitution’s Sixth and 14th Amendments to guarantee the right to an attorney for those who can’t pay.
Researcher highlights issues
The state-sanctioned report from the nonprofit Sixth Amendment Center, however, says South Dakota’s practice of delegating public defense funding and management to counties creates what the center’s Aditi Goel described Wednesday as “justice by geography.”
“It results in a decentralized patchwork of county funded public defense systems,” Goel said. “The problem is that some counties cannot afford to fund public defense services at the levels that are constitutionally required.”
The state also lacks oversight mechanisms and has no standards for qualifications, training, supervision, compensation or caseloads specific to attorneys who act as public defenders.
Goel pointed out that public defenders and court-appointed attorneys in South Dakota have heavy caseloads. One private attorney contracted as a public defender had 73 open cases in 20 counties across six judicial circuits at the time the attorney was interviewed by the Sixth Amendment Center’s research team.
“Our analysis found that attorneys across the state have cases that exceed the most conservative national standards,” Goel said.
The center’s report recommends the creation of standards in each area, and for the state to fund the recently formed Commission on Indigent Legal Services at a level high enough to perform oversight.
How to ‘eat this elephant’
Neil Fulton, dean of the University of South Dakota Knudson School of Law, chairs the commission. Fulton also formerly served as the chief public defender for federal cases in the District of South Dakota.
Fulton likened the state’s approach for tackling the issues laid out in the report to eating an elephant. According to a truism sometimes attributed to St. Francis of Assisi, the way to complete such a task is “one bite at a time.”
“One of the things for us as commission, now that we’ve all decided we’re going to eat this elephant, is to start deciding where we slice off a little bit of elephant and get that done,” Fulton said, adding that the work will take “many years.”
The first job, Fulton said, will be for the commission and judicial system to throw its full support behind the work of Christopher Miles, the state’s first public defender. Miles will be tasked with assembling a team of lawyers and staff to handle criminal appeals for defendants represented by a public defender at the trial level. Counties will remain responsible to provide lawyers for indigent defendants prior to their appeals.
Staffing the state office with attorneys, ideally with attorneys in different geographic areas, will be a priority, as will guidance on how to set up the just-established office’s workflow and connecting with court systems across South Dakota.
The second step, Fulton said, will be to tackle issues the commission can attend to on its own. That would include setting standards for things like qualifications and caseloads and settling up a system of data collection to track and compile information on county-level public defense.
Questions on funding from the state and adjustments to practices in local jurisdictions would come later, he said, as those conversations would require buy-in from other entities.
One recommendation in the report was to end some counties’ practice of allowing prosecutors to speak to and sometimes secure plea agreements from defendants before they’ve been appointed a lawyer.
“That is not something the commission can stop today,” Fulton said. “Without speaking for other members, I would tell you that there are folks on the commission who would tell you why that can be an efficiency measure. I’m not telling you I agree with them, but I’m definitely telling you that the commission has not wrestled through that yet.”
Funding questions loom, but not in January
Attorney pay and mileage reimbursements for those who work in smaller counties were among the issues that drove the court system to study the public defense system. Finding ways to “meaningfully compensate the attorneys that are willing to take on those cases in those more rural areas” with state funding will be an important discussion, Miles said.
Miles, Jensen and Fulton all said that funding questions will loom large in the coming years as the state moves to help counties stop the bleeding from growing public defense costs.
Those conversations won’t happen during the next legislative session, Jensen said. The courts will have enough work to do in setting standards and building out the state’s indigent defense office.
One wrinkle in future funding talks could come on Election Day, when voters will be asked to weigh in on Initiated Measure 28. Backers say the measure would repeal the state’s sales tax on groceries, but opponents have argued that the measure’s verbiage could also bar grocery sales tax collections by cities and bar sales taxes on a host of other consumer goods.
The exact amount of revenue loss from the measure’s passage may be in dispute, but Jensen said the losses would clearly be significant.
All the state court system can do, Jensen said, is present the issues surrounding public defense and make its case to the lawmakers tasked with setting the state budget.
“I’m an eternal optimist. And in my view, I think we’ll get the funding we need, because this is a priority,” he said.
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