Oil boom rapidly creating a Sixth Amendment crisis in North Dakota

September 25, 2012


David Carroll


Pleading The Sixth


Pleading the Sixth: Though the successful implementation of oil fracking technologies has created a large budget surplus for North Dakota, it has also had the unintended side effect of overwhelming the state’s indigent defense system, as unemployed workers from across the country flood oil “boom towns” in the northwest regions of the state that were unprepared to deal with rising populations and subsequent crime.  A new report by the State Bar Association of North Dakota warns of a constitutional crisis if part of the state’s budget surplus is not dedicated to indigent defense.

“[B]usinesses are thriving,” “unemployment is non-existent,” and “tax revenues are up, way up,” says a September 7, 2012 report from the State Bar Association of North Dakota.  That same report makes clear, however, that not everything associated with the state’s oil boom is so positive.  The population of the northwestern part of the state has more than doubled in a very short time period, as unemployed people from across the country flood North Dakota looking for work.  But the massive influx of people has resulted in a corresponding increase in crime — a 53% increase in felonies and a 44% increase in misdemeanors over a five-year period (2006 to 2011).  As the State Bar’s Justice System Energy Task Force Report suggests, “[t]here is a constitutional crisis rapidly approaching if the Indigent Defense Commission is not given adequate resources to provide constitutionally-mandated representation for indigents charged with criminal offenses.”  As a result, the State Bar Association is actively supporting a call to increase the state indigent defense budget by more than 16% (from $12 million annually to $14 million).

To fully understand the current issues facing North Dakota’s public defense system, we present a brief overview of how their system works.

The North Dakota indigent defense system

Prior to a 2005 legislative reform, indigent defense services in North Dakota had many of the hallmarks of a “non-system.”  Similar to Tennessee’s adult conflict system (read about it here), local judges directly controlled the process for appointing counsel, while the state paid the tab but without the ability to oversee the quality of services rendered.  There were no standards related to training, attorney performance, or supervision.  Judges set flat rates for an unlimited number of cases that then went out to bid.  According to a 2000 U.S. Department of Justice special report on contracting for indigent defense services, this set-up resulted in a situation where “if an attorney receives a particularly difficult case toward the end of the contract period,” he or she would still be  “expected to carry the case to completion. In some cases, that has meant continuing to work without compensation after the contract ends.”

The 2005 reform statutorily created an independent seven-person commission, appointed by diverse authorities, housed in the executive branch of government [“North Dakota Commission on Legal Counsel for Indigents” (CLCI)].  While CLCI members are required either to have experience representing criminal defendants or “demonstrated a commitment to quality representation in indigent defense matters,” the CLCI statute prohibits active judges, state’s attorneys, law enforcement, contract counsel or public defenders – or any employee of any of the above – from serving on the commission.

The CLCI is statutorily charged with developing standards governing the representation of indigent persons.  Specifically, CLCI must (and has) developed standards: defining indigency; prescribing “minimum experience, training, and other qualifications for contract counsel and public defenders”; and establishing procedures for the “evaluation of contract counsel and public defenders”; among others.  Indeed, CLCI is statutorily empowered to create any “standards considered necessary and appropriate to ensure the delivery of adequate indigent defense services.” All CLCI standards are available here.

Recognizing the value of the American Bar Association’s, Ten Principles of a Public Defense Delivery System  (Principle 2) call for indigent defense systems to consist of both “a public defender office and the active participation of the private bar” wherever caseload is “sufficiently high,” CLCI is statutorily charged with establishing public defender offices anywhere in the state the commission considers “necessary and appropriate.”  Accordingly, CLCI has established six full-time public defender offices (Dickinson, Minot, Williston, Grand Forks, Fargo, and Bismarck) since 2005. Conflict cases in these six regions, as well as all indigent defense services in regions where there is no full-time public defender office, are handled by private counsel under contract to CLCI.

Though CLCI has the statutory authority to establish standards to control workload for both public defenders and contract counsel, they have not yet done so.   As is often the case with relatively new commissions with the authority to set caseload standards, CLCI has worked methodically to ensure that they have gathered sound objective data to support the need for such standards before rushing to adopt national workload standards that may or may not be appropriate given how the criminal justice system functions in North Dakota.

Back to the Oil Boom

As noted in an August 21, 2012 news report in the AM LAW Daily, it is not just the growing caseloads that is wreaking havoc on CLCI, but also a declining number of attorneys willing to work in northwestern North Dakota for the going rates.  Although the most recent American Bar Association report on assigned counsel compensation rates suggests that North Dakota’s $75/hour rate is above many other states’ assigned counsel rates, attorneys in North Dakota are refusing to renew indigent defense contracts when they could charge $250-300/hour writing “drilling opinions for oil companies.”

The oil business has also driven up the cost of living in the region.  Whereas a one-bedroom house rented for only $500/month in 2005, the AM Daily relates that the same house rents for $2,500/month today. As a result, CLCI has been unable to hire new attorneys to the region even given a salary of $69,000 per year.  Because of the lack of lawyers, CLCI has been forced to draw on resources from the public defender offices in relative proximity to where the need is highest.  The AM Daily recounts how one defender from the Minot office travels 127-miles each Monday to handle cases in the boom town of Williston, only to return Wednesday night to handles his duties in Minot on Thursday and Friday. Pulling resources from one area to another causes a domino effect whereby the workload of the other Minot defenders expands as they try to cover for the public defender handling Williston cases.

With support of the State Bar Association, justice advocates in North Dakota are relatively optimistic that new monies will be forthcoming for CLCI.  However, even new monies will not stem the issues if attorneys are unwilling to move to northwestern North Dakota.