New 6AC report finds South Dakota counties are at a breaking point and need state oversight

Pleading the Sixth: 6AC and the South Dakota Unified Judicial System release a report after a statewide evaluation of adult trial-level public defense services. The report finds that South Dakota’s locally funded, decentralized county-based public defense system results in the denial of counsel and erodes the adversarial system of justice. However, since January 2023, South Dakota state leaders have continually demonstrated will and commitment to fixing the root causes of this system, as evidenced by their newly formed Commission on Indigent Legal Services which has the authority to oversee all right to counsel services statewide, the hiring of their first Chief Defender last week, and their request for this evaluation.

Today, the Sixth Amendment Center (6AC) and the South Dakota Unified Judicial System (UJS) release a report after a statewide evaluation of adult trial-level public defense services. South Dakota is one of four states in the nation to delegate all its trial-level right to counsel obligations to county governments, with no state oversight. The report concludes that South Dakota’s locally funded, decentralized county-based public defense system results in the denial of counsel and erodes the adversarial system of justice.

This is not the first evaluation of public defense services in South Dakota. A 1977 U.S. Department of Justice-funded report by the National Center for Defense Management concluded: “While it is not impossible, it is difficult to be an effective yet aggressive defender lawyer in South Dakota.” We believe this remains an apt description of public defense services in the state.

Because the state did not make changes to the structure of the indigent defense system in response to the 1977 report, the right to counsel issues that existed nearly 50 years ago have been passed down, institutionalized, and inherited to present day. No single person today can, or should, be blamed for the right to counsel deficiencies detailed in 6AC’s report. South Dakota’s right to counsel deficiencies are structural (not individual) and can only be remedied at the state-level, by the state.

Evaluation Findings & Recommendations

Ensuring an effective lawyer for every indigent person is a state obligation under the Fourteenth Amendment. Yet, South Dakota requires county governments to fund, administer, and deliver trial-level services. This means that no matter how geographically large or small, or how densely populated or rural, or how wealthy or poor a county is, state law requires each of its 66 county governments to fulfill the entire provision of the effective right to counsel.

Passing on this state obligation to counties with no state oversight begs the questions: How does South Dakota know whether the appointed lawyers are effective? Which appointed attorneys have too many cases, and which don’t? Whether every appointed case is matched with a qualified, conflict-free attorney? If the appointed attorneys are meeting with their clients and investigating their cases? Or, whether a lawyer is ever appointed to a case at all?

Our statewide evaluation uncovered numerous ways that the lack of state standards denies counsel and erodes adversarial practice:

• A recoupment practice that interferes with the independent judgment of the attorneys, where the state can recoup the full cost of representation provided by a public defender or private attorney (this includes charging every task by the attorney at the state hourly rate, from reading a client letter to charging the cost of an investigator or expert).
• Judicial and prosecution practices of talking to defendants who have not yet waived their right to counsel at the initial appearance, potentially creating the actual denial of counsel.
• Inconsistent group advisement of rights by judges that can chill defendants from exercising their right to counsel.
• Inconsistent indigency determinations by judges that can result in the unequal treatment of defendants.
• Unqualified and untrained attorneys appointed to represent indigent people.
• Public defenders and private attorneys with too many cases.
• Private attorneys who are paid flat fees, or so little, that they are too financially conflicted to spend time on their appointed cases.

The void created by the lack of state standards is filled with local judges and county officials selecting, compensating, and assigning attorneys to appointed cases, potentially impairing the ability of appointed attorneys to be adversarial altogether.

6AC recommends changes to the structure of the indigent defense system so that every indigent person accused of a crime in South Dakota is afforded their right to counsel under the Sixth and Fourteenth Amendments, today and in the future:

1. First, the newly created Commission on Indigent Legal Services (CILS) should promulgate standards necessary to ensure the effective assistance of counsel, and then the state should fund CILS through state annual appropriations at the level necessary to enforce standards statewide.
2. Second, South Dakota should consider ending its recoupment practice and bar prosecutors from speaking with unrepresented defendants.
3. Finally, UJS should adopt a uniform statewide advisement of rights.

Looking Forward

Since January 2023, UJS has led the state in reforming indigent defense efforts. Rather than look the other way, state leaders have responded constructively when faced with these issues by taking the first steps necessary to ensure a constitutional public defense system. And, South Dakota continues to do, as evidenced by South Dakota Supreme Court Chief Justice Steven R. Jensen’s response to 6AC’s report:

“This report includes a thorough, and sometimes candid, look at some of the current challenges the state faces as it seeks to fulfill the constitutional obligation to ensure the right to counsel for indigent people who are facing the prospect of jail or prison,” Chief Justice Jensen said upon release of the report.  He added, “We will continue to study the report in the months to come and work with the other branches of state government to ensure the right to counsel for eligible people no matter where they are in South Dakota.”