Juvenile Indigent Defense Delivery System
South Dakota provides counsel to indigent youth through a county-based system that includes public defender offices, contract attorneys, and privately appointed counsel. S.D. Codified Laws § 23A-40-7. State law specifies that if the county elects to have a public defender, the public defender must represent any youth arrested or detained for juvenile delinquency. S.D. Codified Laws § 7-16A-9.
South Dakota has no statutorily required or recommended training requirements or standards for attorneys representing youth in delinquency proceedings.
In addition to statutes and case law, juvenile court proceedings are governed by court rules. South Dakota does not have specific juvenile court rules at the statewide level, but South Dakota statute § 26-7A-34 provides that juvenile adjudications are governed by the state’s Rules of Civil Procedure.
Right to Counsel
Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitution or statutory provisions further expanding upon on or delineating that right.
In South Dakota, youth in juvenile court have the right to counsel in delinquency proceedings and children in need of supervision (CHINS) proceedings. Laws §§ 26-7A-30, 26-7A-44. The court must advise the child and the child’s parent, guardian or custodian of the right to counsel “at the first appearance of the parties before the court.” S.D. Codified Laws § 26-7A-30.
A child is specifically entitled to counsel at the following stages:
- Preliminary hearing prior to a hearing on the petition. S.D. Codified Laws § 26-7A-54;
- Probation violation hearing. S.D. Codified Laws § 26-8C-15;
- Transfer hearing. People in Interest of L. V. A., 248 N.W.2d 864 (S.D. 1976).
Determination of Indigence
South Dakota has no presumption of indigence in juvenile court proceedings. A child or the child’s parents, guardian, or custodian can request appointed counsel and submit paperwork showing they cannot afford counsel. S.D. Codified Laws § 26-7A-31. The court determines whether the juvenile is without sufficient money, credit, or property to pay for attorney fees or legal expenses. S.D. Codified Laws § 23A-40-6.
The statutes imply that the parent or guardian is responsible for providing counsel for a youth in juvenile court because if the child has court-appointed counsel, a lien is placed upon the parents’ real and personal property “to repay funds paid by the county … or the state for the child.” S.D. Codified Laws § 26-7A-32A.
Even if a child is not found indigent or does not request counsel, the court can appoint an attorney “if the court deems representation by an attorney necessary to protect the interests of the party.” S.D. Codified Laws § 26-7A-31.
Waiver of Counsel
South Dakota does not have a specific juvenile statute or rule addressing a juvenile’s waiver of counsel. Juvenile case law indicates that a juvenile can waive the right to counsel if it is knowing and intelligent and if the child is aware of the dangers and disadvantages of self-representation. In re R.S.B., 498 N.W. 2d 646 (S.D. 1993).
When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In South Dakota, a detention hearing must occur within 48 hours of the child being detained, excluding weekends and holidays. S.D. Codified Laws § 26-7A-14. Provisions for the detention of juveniles are also found in S.D. Codified Laws §§ 26-7A-13.2, 26-7A-15, 26-7A-16, 26-7A-18, 26-7A-21, 26-7A-26, 26-8B-7, 26-8B-3, and 26-8C-3.
The U.S. Constitution and Supreme Court case law are also sources of due process rights beyond local and state statutes and provisions. NJDC’s Detention Page provides more information about detaining youth.
The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues. South Dakota statutes list one post-disposition proceeding at which youth have a right to counsel.
In South Dakota, youth have a right to counsel in the following post-disposition proceeding:
- Probation violation hearing. S.D. Codified Laws § 26-8C-15.
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a child who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In South Dakota:
- The youngest age at which a juvenile can be adjudicated delinquent is ten. S.D. Codified Laws § 26-8C-2;
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 18th birthday; after age 18, the youth is charged in adult court. S.D. Codified Laws § 26-7A-1(3) or (6);
- Juvenile court can retain jurisdiction over youth until age 21, provided that the offense alleged to have been committed occurred before the youth turned 18. S.D. Codified Laws § 26-7A-1(3) or (6).
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. South Dakota has three ways that juveniles can be prosecuted as adults:
- Discretionary waiver: for any felony; there is no minimum age requirement. S.D. Codified Laws § 26-11-4.
- Statutory Exclusion: required for youth age 16 and older accused of class A, B, C, 1, or 2 felonies. S.D. Codified Laws § 26-11-3.1.
- Once an Adult, Always an Adult (if convicted of the offense). S.D. Codified Laws § 26-11-4.
NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.
NJDC has not yet conducted an assessment of the juvenile indigent defense system in South Dakota. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.