By: Michael Achterling (ND Monitor)
New budgets for state agencies and commissions in North Dakota went into effect July 1 and one commission will see a 20% increase over the next two years — the Commission on Legal Counsel for Indigents.
The commission has a budget of nearly $27.2 million through the 2025-27 biennium, a $4.5 million budget increase over its 2023 budget.
Travis Finck, executive director for the commission, said the budget increase is a step in the right direction on fair pay for attorneys that assist defendants who can’t afford to pay for a lawyer.
“We’re still not where we need to be, but we also understand the position the state is in. There was a lot of uncertainty with federal funds and obviously property tax was a big issue this session,” Finck said. “We’re really grateful to legislators … They were listening and understanding of our situation that we’re in and did commit to helping support us and our mission moving forward.”
The commission’s public defenders are set to begin a new tiered pay scale and defense attorney contractors will see a pay raise this year, but they will still earn less than prosecutors and attorneys working for other state agencies. Finck said the defense attorney contract rate for indigent defense increased on July 1 from $80 to $90 per hour because of the increased budget.
“That’s still a good increase for us, but we’re still significantly behind what the federal rate is,” he said. As of Jan. 1, the defense attorney contract rate for federal, non-capital cases is $175 per hour, according to the U.S. Courts website.
“We just want to be in the same ballpark because we think we offer an opportunity where if you go to law school and you want to make a difference in someone’s life, we provide that opportunity,” Finck said. “The problem is, before, we weren’t even in the stadium. So at least now, we’re getting a lot closer.”
The increased budget will also allow the commission to hire two additional investigators, bringing the total number of investigators to three, to help with the defense of their clients. Finck said, if prosecutors need more information about a case, they can send out a sheriff’s deputy or a police detective and they can go out to interview more witnesses, or gather more evidence.
“On the defense side, if we have an issue pop up … a lot of the time, unfortunately, that’s my attorneys out there taking those pictures or trying to track down witnesses,” Finck said. “With the use of investigators now, we can have people who are trained specifically in investigations to go out and interview witnesses … and a lot of the time it’s verifying our client’s story.”
Aaron Birst, executive director for the North Dakota Association of Counties and a former prosecutor, said adding two additional investigators to be used by public defenders will help ensure the correct outcomes occur in these cases.
“Law enforcement and prosecutors are also overworked and any time you have another set of eyes looking at something, that’s helpful to the system and not just to the defendants,” Birst said.
During the legislative session, Finck told lawmakers that employee turnover has been a problem for their offices in recent years. He said the six largest counties in North Dakota allocated about $39 million to prosecutors during the previous biennium while the commission’s budget for the whole state was $22.6 million.
The commission has an administrative office in Jamestown and regional public defender offices in Fargo, Bismarck-Mandan, Grand Forks, Minot, Dickinson and Williston.
Finck said it will be interesting to see how the counties respond to the 3% property tax levy caps that passed as part of property tax reforms as it relates to prosecutor pay in the future.
During the 2023-25 biennium, 18 of the commission’s 41 total employees left their positions, including 10 attorneys, which led to cases being reassigned to an already stretched public defender workforce or contracting services to private defense attorneys. Those reassigned cases are typically paid at a higher rate than normal, Finck said.
In fiscal year 2024, the commission handled 16,671 court cases, a new record for public defenders in the state, and an increase of more than 400 cases from the previous year. The commission has seen more than 16,100 cases each year since 2021. According to the 2024 North Dakota Court System annual report, more than 168,000 cases were filed in district court last year, which includes both civil and criminal cases.
State law requires the commission to contract out at least 50% of its cases to private defense attorneys. Finck told lawmakers that 73% of its cases were contracted to defense attorneys outside of the commission public defenders in 2024.
Rep. Lawrence Klemin, R-Bismarck, an attorney, sponsored and passed a series of criminal justice reform measures during the legislative session aimed at improving the state’s judicial system, Department of Corrections and Rehabilitation and reducing recidivism. One of the new laws eliminated the $35 application fee for indigent defense and instead replaced the revenue from those fees with an allocation from the state’s general fund.
Klemin praised Finck for the job he is doing running the commission with its high case load. He also said the way to prevent the turnover of public defenders is obvious.
“Pay them more money and they’ll stay. It is that simple,” Klemin said. “We have a constitutional obligation to provide a defense for somebody who is alleged to have committed a crime, if they can’t afford an attorney.”
He added the budget increase will help the commission and its public defenders, but there is still plenty of room to keep going.
“It’s going to help, but it’s still not enough,” he said.
