South Dakota leaves nation’s “no state funding” list in groundbreaking legislation

March 19, 2024


Aditi Goel


Pleading The Sixth


Pleading the Sixth: On Gideon Day, March 18, South Dakota’s Governor signed groundbreaking legislation creating a state commission with authority to oversee right to counsel services statewide with overwhelming support from all three branches of state government and various stakeholders. The nation can now celebrate that, for the first time in its history, every state contributes some amount of funding to indigent defense.

On Gideon Day, March 18, Governor Kristi Noem signed HB 1057 into law creating South Dakota’s first-ever state indigent defense system with overwhelming support from all three branches of state government, law enforcement, prosecution, the state bar, the criminal defense bar, and county government officials. This marks the first time in our nation’s history that every state funds indigent defense.  

The best part? This may be just the start for South Dakota.  

A legislative solution built for change 

HB 1057 establishes a state-funded state commission to oversee all indigent defense services statewide. The Commission on Indigent Legal Services (CILS) is nine members: three appointed by the governor, three by the chief justice, one by the senate president pro tempore, one by the house speaker, and one by the state association of county commissioners. 

CILS is empowered to set and enforce caseload, training, and conflict standards for all appointed attorneys (private and public) statewide; set hourly compensation and travel reimbursement rates; exercise fiscal oversight; collect data for oversight; engage in funding and policy advocacy; and appoint a chief defender to head the statutorily created Office of Indigent Legal Services. This new state office will administer CILS’ day-to-day oversight responsibilities and provide direct representation in certain appeals cases (decision on trial-level representation was deferred pending a 6AC evaluation). Importantly, CILS will have the authority to adapt to the state’s evolving needs by exploring funding mechanisms, developing strategic plans, conducting research, and expanding the scope of direct representation. 

HB 1057 passed with a $1.4 million appropriation for CILS, and a one-time funding of $3 million to reimburse counties, representing the state taking on approximately 20% of all indigent defense costs (by comparison, Pennsylvania’s recent move to get off the “no state-funding” list with a $7.5 million appropriation will cover approximately 5.5% of all indigent defense costs). 

Reaching state-level understanding and consensus 

One year ago, the governor signed a bill creating a task force in response to the chief justice’s call to study indigent defense. The task force – composed of state legislators, judges, prosecutors, county commissioners, public defenders, private attorneys, and the USD Knudson School of Law Dean – held meetings open to the public and press, convened listening sessions throughout the state, collected available data, and sought 6AC’s technical assistance to understand the depth and complexity of the issue. All that was collected and learned was shared with the public on an ongoing basis.  

South Dakota is a large, rural state where approximately half of its 66 counties have fewer than 5,000 people, and more than one-tenth of the state’s land area is reservation land. Required to rely on a limited local tax base to meet all the county spending needs (including the right to counsel), the task force uncovered that each county has been operating an indigent defense system it can afford rather than one that is constitutionally required. To intensify the problem, there is no state oversight of the quality of services locally provided to indigent defendants.  

The task force published a report in October 2023, finding that the state’s “county-based system provides no mechanism for oversight and training for defenders statewide,” burdening judges, the prosecution, and the counties, and leading “the counties and the judicial system to question if the current system is meeting the needs of South Dakota.” Within months of the report’s publication, HB 1057 was filed. 

Congratulations, South Dakota! 

South Dakota remains in the minority of states that require local governments to primarily fund trial-level indigent defense services. Still, the state should be credited for righting the course after recognizing what is at risk when the indigent accused are not given adequate counsel. As South Dakota Supreme Court Chief Justice Steven Jensen warned in this year’s state of the judiciary address:  

“The importance of our adversarial system of justice to ensure due process and fairly apply the law in every case cannot be overstated. Without the benefit of counsel for the accused, the rights that separate us from almost every other government in the world are meaningless. If we fail in providing indigent defense, we risk so much more than not having an attorney available in the courtroom to represent a person accused of a crime.”