Mark Walker

mwalker@argusleader.com

The U.S. Constitution guarantees an attorney to anyone charged with committing a crime.

In South Dakota, that right comes at a price of $92 an hour.

South Dakota is among a minority of states that send criminal defendants a bill after they are represented by a public defender, regardless of whether they have an ability to pay.

The bills range from hundreds to thousands of dollars and mostly go unpaid, which is a criminal offense itself.

In Minnehaha County, officials are considering a more aggressive approach to collecting court-appointed attorney debts, but defense lawyers say the move would be futile and work against the state's recent criminal justice reforms aimed at locking up fewer non-violent offenders.

"It’s such a black hole for these indigent defendants,” deputy public defender Katie Dunn said.

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Dunn said it's “demoralizing” to sit across the table from a former client brought back into the criminal system because they were unable to pay for her services.

Vernon Merritt, 60, lives at a Sioux Falls homeless shelter. His sole income is a monthly disability benefit. After necessities, he said he's lucky to have $100 left.

Some of that goes toward the $2,000 he owes Yankton and Turner counties in court-appointed attorney fees from a 2014 burglary charge and conviction.

Until the debt is paid, Merritt risks arrest at anytime.

“It’s rough because I’m trying to save money to get a new place, but with this, I’m stuck here,” Merritt said, referring to the Bishop Dudley Hospitality House.

Unlike other court fees and fines, defendants can't escape court-appointed attorney fees by sitting them out in jail. The only way to escape the debt — and the looming threat of an arrest — is to pay them off, which can take several years for people with financial situations like Merritt's.

“I understand we don’t want to put a person in a position where they would have to commit another crime to survive, but there has to be accountability,” said Minnehaha County Commissioner Dick Kelly.

Kelly is among the county officials who wants to look at whether a new state debt collection department could help see that more of the attorney bills are paid.

The county commission on Tuesday discussed whether to refer unpaid attorney fees to the South Dakota Obligation Recovery Center, an agency created by the state Legislature in 2015 to centralize government debt collection.

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The state center has authority to suspend driver's licenses or block hunting, fishing and other registrations who don't pay state debts.

Does the county need that kind of get-tough approach for unpaid attorney fees? County commissioners were split on the question this week.

“I think it’s… continuing the punishment after they have served their time,” Minnehaha County Commission Jeff Barth said. “I don’t think it’s the right plan.”

The state debt center would be allowed to add a 20 percent fee, hitting people with even more debt during the collection phase, Barth said.

Minnehaha County State’s Attorney Aaron McGowan said most judges ask the defendant at the time of sentencing for a reasonable due date on when they can repay their financial obligation. And defendants should repay the tax dollars spent moving them through the court system.

“Taxpayers shouldn’t have to pay for a criminal defendant's responsibilities,” McGowan said.

Dunn, of the Minnehaha County public defender office, said some people don’t realize how truly poor some of the clients she represents are.

“There doesn’t seem to be a method to the madness of trying to get the money back from the poorest people in our community,” Dunn said.

The state Obligation Recovery Center isn't expected to be operating until next month. The Minnehaha County Commission has not yet scheduled a vote on whether it should contract with the center for attorney fees.

Ryan Kolbeck, president of the South Dakota Association of Criminal Defense Lawyers, said people shouldn’t be subjected to punitive sanctions simply because they can afford a court-appointed lawyer.

“If you keep on adding in measures that are supposed to make people pay," Kolbeck said, "it continues to beat them down."

Follow Mark Walker on Twitter at @argusmwalker.