South Dakota’s Unique Proposal to Fund Indigent Defense

We all know that seized drug proceeds are used to fund prosecutor’s offices and even initiatives sponsored by law enforcement agencies. To me, those uses are bothersome because agents are given a financial incentive to seize property and cash knowing that they’ll indirectly benefit, financially, from their actions. Is it any different if the seized property were to be used to fund public defender programs that have been decimated by budget cuts?

Steven Hickey, a South Dakota legislator, has urged his colleagues to consider using the Drug Control Fund to fund public defender offices and pay court appointed counsel. Hickey’s bill would ask for a more thorough accounting of the money seized by law enforcement from suspected drug dealers and direct between 25 to 50% of it toward the legal fees amassed by counties.

In 2013, $70,514 was awarded from the Drug Control Fund for law enforcement and prosecution costs in Sioux Falls and Minnehaha County. Overall in 2013, $643,722 was awarded from the fund to local agencies and the same fund pays an average of $60,000 per month to local law enforcement for drug testing. If indigent defense costs the state’s largest county 3.8 million a year and defendants have only reimbursed the county $824,000, then why shouldn’t the Drug Control Fund be used to offset these spiraling costs?

One reason is offered by South Dakota Attorney General Marty Jackley who said “I do not support using the profits of criminals to defend their activities.” Seems a little short sighted Marty—without saying it, you simply don’t want your pigs to be nosed out of the trough. It seems to me a more fundamental problem is the use of the seized property to fund public defense creates an appearance of impropriety. If a seizure of property is used to indirectly pay court appointed counsel used to defend the property owner, doesn’t that give the attorney a built in incentive to fail so the seizure is awarded to the state which in turn is used to pay the lawyer? This is a noble, but bad idea, and traditional funding methods should be used to pay for the Sixth Amendment right to counsel.