This story has been updated.
ABERDEEN, S.D. (KELO) — A panel the Legislature directed to research possible ways to improve legal services for indigent defendants in South Dakota held its first public-input session in Aberdeen on Wednesday.
The meeting at the Brown County Courthouse drew a variety of defense and prosecution attorneys, circuit judges, county officials and others.
Lawyer Jeff Tronvold and budget and finance director Aaron Olson from the South Dakota Unified Judicial System hosted the session.
They then traveled to Sisseton for the second public-input session on Wednesday afternoon. More meetings are scheduled across South Dakota in the coming weeks.
Tronvold said South Dakota was different from most states, because county governments bear nearly all of the cost for providing legal representation to indigent defendants in criminal cases.
Among the suggestions Wednesday were having state government pay for a greater share of the costs, increasing the $1 per mile reimbursement, providing training for private attorneys to represent indigent people in death-penalty cases, establishing a state-funded office to handle appeals, having state-funded defense investigators and finding ways to attract more attorneys to rural counties.
“Mileage is a disincentive,” said Jeremy Lund, an attorney for the Siegel, Barnett & Schutz law firm in Aberdeen. He said the federal tax-deduction per mile was 64 cents. “So that means, as far as true compensation for our time, we’re talking about 45 cents a mile.”
Tom Cogley, an Aberdeen attorney who serves on the task force, is part of a group of lawyers providing indigent legal services through a contract with Brown County. “I know from working with the county commissioners here, in terms of contract negotiations, it’s an unbelievable expense. I personally have always felt that it is unfair to put it all on the counties as it happens now.”
Those ideas and others that the task force will receive will be discussed during the panel’s June meeting in Sioux Falls.
Fifth Circuit Presiding Judge Gregg Magera said, from his perspective, the Brown County system works well. “What we have to remember is that the attorneys that have contracted with the county are in my opinion attorneys that want to do this work. It’s probably their primary practice area, their area of expertise,” he said.
Judge Magera continued, “From the court’s perspective, we’re always concerned that indigent clients get good representation, quality representation, and we certainly have that in the circuit. We all understand that dollars and cents are an issue, and it’s becoming a concern not only in our circuit but statewide.
“We have some rural communities that continue to shrink in size, and there’s a very real concern that we have attorneys that are coming through the system that would be willing to take cases in those rural areas where there’s a lot of windshield time. So we’re always appreciative of attorneys that are willing to take those cases,” Magera said.
Indigent-defense costs have driven some counties to the edge of bankruptcy, according to Staci Ackerman, executive director for the South Dakota Sheriffs’ Association. “We’re struggling with new revenue sources,” she said.
“Just if we could get some help with indigent costs, whether it be a direct allocation or a state entity taking it, but we understand the importance of qualified defense counsel in our counties,” Ackerman said. “And as was mentioned here by some of the others, in some of the areas some of our sheriffs are telling us, it’s getting more and more difficult to get people to take on those defense costs.”
Circuit Judge Tony Portra said the Aberdeen-based Fifth Circuit for years had led South Dakota’s seven court circuits in collections of payments from indigent defendants for legal representation. “The statistics didn’t lie,” he said.
Portra said there have always been discussions about whether it’s more cost-effective to have a public defender’s office. “At this point, I don’t even think that’s feasible. The contract system is much more realistic. Aberdeen like many places has, is having, a harder and harder time of even getting attorneys to come and fill positions.
“Just think about who would be the head public defender, that the necessary experience that would require, and the money that would be required to get someone to accept that, and forsake all other cases — I just don’t even think is probably feasible anymore. The contract system allows us to have a number of attorneys with varying skills and experience. Many of the people, if you were in trouble and you had money, that’s who you would go out and hire anyway,” Portra said. “Our indigent defendants are getting very, very good representation.”
He added that having state government have “more of a stake in having to pay makes a lot of sense. I’ve always felt our court costs are very low. Our felony costs are a hundred and sixteen dollars and fifty cents. That could easily be raised significantly and some of that money go toward the indigent fund. It’s always been my experience just roughly that ten percent of the people are committing ninety percent of the crimes. We have a certain core group that are the users of our services and maybe they should have a stake in paying some of those services.”
Portra recalled his time as a magistrate court judge, when part of the conditions for a suspended sentence was the defendant paying court-appointed attorney fees. “We harassed them and hounded them until they paid. Now we’re at a system where there’s no accountability, even on a felony, if they owe money, we just dismiss them from probation with financial owing, meaning no financial accountability whatsoever. Again, I think the users of our system should be responsible.”
Mark Anderson, the interim Brown County state’s attorney, said violent crimes happen “anywhere.” He said McPherson County doesn’t have money to budget for a murder trial. He said the Legislature needs to look at restructuring the responsibility.
“We all know counties are limited in their funding and revenue sources. We all know that they’re stretched just to meet their roads budget from year to year. And with the inability to forecast what’s going to happen from a criminal defense standpoint, thinking of the contract attorneys, they don’t know whether there’s going to be an additional three hundred cases in a given year, and try to juggle that,” Anderson said.
“Fundamentally,” he continued, “counties, municipalities, always like to have local control. Local control is very important in politics. This is one aspect where the local control should be overridden by the needs of the many, and the only way to fit the needs of the many is by putting that at the state level.”
Cogley said the Brown County state’s attorney office has struggled to get deputy prosecutors, despite the county’s standing as one of the more populated areas outside of Sioux Falls and Rapid City. “Attorneys generally coming out of law school, their options are Sioux Falls, Rapid, Sioux Falls and then Sioux Falls again, as far as places they want to live,” he said.
Task force representatives will be in Hot Springs next on Friday, May 19.