How an otherwise model assigned counsel compensation plan contributes to South Dakota’s indigent defense problems

May 30, 2013


David Carroll


Pleading The Sixth


Pleading the Sixth: When states make counties wholly responsible for the delivery of trial-level indigent defense services without state oversight of those services, bad things can and do happen. In Part I of this two-part report, the 6AC looks at South Dakota’s decentralized right to counsel system, and the resulting impact on the client community. In this part, the 6AC explores why it is so important that the ABA Ten Principles be adopted in whole, through a discussion of how South Dakota’s assigned counsel compensation scheme – a scheme that is in some ways a model for the rest of the country – is contributing to inadequate representation. We also report how the failure to adopt the ABA Ten Principles exacerbates the  criminalization of poverty discussed in the first part of the report.

The American Bar Association, Ten Principles of a Public Defense Delivery System is not an a la carte menu from which a jurisdiction can pick and choose only those standards that best fit their existing court system or budget. That is, from a client’s perspective, it matters not that an individual attorney has a controlled caseload if that attorney does not possess the requisite qualifications, training and supervision to perform effective representation. Likewise, even the most skilled attorney will not be able to perform adequately if she is barred from meeting a client and actively investigating the facts of a case until, for example, the formal filing of an indictment which may not occur until several months after an arrest. Conversely, early appointment of a public attorney into a case will not result in satisfactory advocacy if a client’s attorney is substituted for another for each subsequent court date. And, a qualified attorney, properly trained, will still have a conflict if he is financially beholden to the judge. What this means is that even the most well-intentioned reform could in fact cause unintended pressures on an indigent defense system if not couched within the framework of the Ten Principles.

A case in point is the 2000 reform of assigned counsel compensation rates in South Dakota. By any measure, South Dakota has a model for compensating public counsel and ensuring that assigned counsel rates remain current as costs of living increases costs. SDCL 23A-40-8 requires government to pay public lawyers a ”reasonable and just compensation for his services.” South Dakota Unified Judicial System Policy 1-PJ-10, issued by the state supreme court, interprets this statute to ban all flat fee compensation (thus meeting Principle 8, in part). In 2000, the Court set public counsel compensation hourly rates at $67 per hour and mandated that “court-appointed attorney fees will increase annually in an amount equal to the cost of living increase that state employees receive each year from the legislature.”  Assigned counsel compensation in South Dakota now stands at $84 per hour.  As noted in the National Association of Criminal Defense Lawyers (NACDL) recent Gideon at 50 publication, Rationing Justice: the Underfunding of Assigned Counsel Systems, the South Dakota assigned counsel compensation rates is well above the admittedly inadequate national average of $65 per hour for felony cases.

Every state should have a similar rule banning flat fee compensation and pinning an adequate starting compensation rate to annual cost of living increases. However, although South Dakota meets (in part) ABA Principle 8, the state fails to meet almost every one of the remaining ABA Ten Principles. For example, Unified Judicial System Policy 1-PJ-10 allows the above stated compensation rates to be paid to “[a]ll lawyers willing to furnish services as court-appointed counsel to indigent defendants.” But “all lawyers” means anyone with a bar card, whether the attorney is fresh out of law school, or specializes in real estate law or divorce cases. This violates ABA Principle 6 requiring that an indigent defense attorney’s “ability, training and experience” match the complexity of the cases to which she is appointed. South Dakota also does not require court-appointed attorneys on criminal cases to be trained, supervised and evaluated, as required by Principles 9 and 10. And, of course, South Dakota judges remain in control of who is appointed and whether or not trial-related expenses are approved (in violation of Principle 1).

Though the 6AC strongly believes that there are very qualified private criminal defense attorneys in South Dakota, there is little doubt that the adequate compensation rates have had the unintended consequence of bringing more unqualified, untrained, and unsupervised attorneys onto the judicially controlled panels. Moreover, as the assigned counsel compensation rates have steadily increased, it has caused high turnover in the state’s only three public defender offices as young attorney are trained, get courtroom experience, and then leave for higher compensation rates afforded to private counsel.

To be clear, the 6AC is not claiming that a public defender model is inherently better than an assigned counsel model, but only that an uncoordinated assigned counsel model that fails to meet the ABA Ten Principles can have a detrimental impact on public defender offices that are established in jurisdictions where caseloads can support public defender offices (as required under ABA Principle 2). Indeed, a coordinated assigned counsel system in which an independent state oversight commission qualifies, trains and supervises attorneys is very much a viable option for a state like South Dakota that has a large geographic expanse and sparsely populated counties.