Big Public Defense Wins in North Dakota

Pleading the Sixth: North Dakota Governor Kelly Armstrong signed sweeping legislative reforms into law, securing counsel for in-custody defendants at the first court appearance, discarding public defender application fees, and eliminating the recoupment requirement that indigent defendants must pay back the cost of public defender services. 6AC applauds North Dakota for these great accomplishments!

North Dakota Governor Kelly Armstrong recently signed two bills into law, effecting major public defense reforms. SB 2226 and HB 1417 work together to better ensure early and free representation by counsel for every North Dakotan facing the potential loss of liberty. As Sen. Sickler, one of the bills’ sponsors explained in his testimony in support of the bill, “the system works better when all parties are represented by legal counsel.”

Counsel at initial appearance

The first win: SB 2226 secures counsel at initial appearance for in-custody defendants.

In North Dakota, if you are charged with a crime, you can apply for a public defender at the first court hearing, called the initial appearance. Receiving representation by an attorney at this first hearing is critical, especially for in-custody defendants. For example, an attorney is trained to navigate complex bail laws and identify facts and legal issues that are relevant to inform the court about pre-trial release; preserve a defendant’s legal rights and legal defenses; and preserve evidence where time is of the essence, such as evidence of a defendant’s competency, criminal responsibility, injuries, and camera footage.

Without the aid of counsel, defendants are more likely to remain incarcerated, at serious personal costs—losing employment, housing, or custody of their children—and disadvantage of their legal case—being unable to participate fully in the investigation and preparation for trial. The importance of counsel at initial appearance in ensuring a fair fight cannot be overstated, and North Dakota legislators agree. SB 2226 creates a presumption of indigence for every person incarcerated at the time of their initial appearance, ensuring representation by an attorney at that first hearing for all in-custody defendants. 

In passing SB 2226, the North Dakota legislature showed a willingness to act proactively. Sen. Sickler testified “from a policy standpoint…the right thing to do is to ensure that criminal defendants have counsel at that early stage, especially because it deals with their ability to get out of incarceration.” The bill takes effect January 1, 2026.

Public defender application fees and recoupment

The second win: HB 1417 eliminates application fees and recoupment costs for indigent defendants.

Prior to HB 1417, a person would have to pay a $35 fee to apply for a public defender. Though the court could waive it, just the possibility of having to pay $35 out-of-pocket can sway people to forgo legal representation. This chilling effect on the right to counsel is why national standards like the ABA Ten Principles of a Public Defense Delivery System urge states “not [to] charge an application fee for public defense services.” HB 1417 eliminates this fee.

HB 1417 also removes the requirement that an indigent defendant must pay back the cost of legal services provided by a public defender at the end of the case, called “recoupment.” These recoupment costs can also have a serious chilling effect on people exercising their right to counsel because someone who is deemed indigent by the court may forgo having an attorney altogether out of fear of being unable to pay back these costs. Recoupment also “serves as a barrier sometimes when individuals are released from prison, and they are saddled with large amount of debts right away,” explained Travis Finck, Executive Director of the Commission on Legal Counsel for Indigents, in his testimony in support of HB 1417.

Congratulations, North Dakota! 

HB 1417 was passed as part of a package of bills aimed at reducing barriers to successful reentry and improving the state’s diversion programs. The bills were a product of a year-long workgroup of various stakeholders and policymakers and received widespread support in both chambers and from the governor’s office. With these big moves, North Dakota aligns itself better with the Sixth Amendment constitutional mandate. 6AC applauds the leadership in North Dakota for achieving these reforms!