Public defenders underpaid, overworked, North Dakota report says

North Dakota public defenders are on track to see their highest caseload ever while getting paid half the rate of their federal counterparts, an administrator told lawmakers.

During a recent Judiciary Committee meeting, Travis Finck, executive director of the Commission on Legal Counsel for Indigents, said public defender vacancies, rising caseloads and lower wages compared to other state and federal attorneys are making it difficult for the office to keep up with a constitutionally protected right to representation.

“There are other states that are actively being sued for failing to fund public defense systems,” Finck said. “I really try to not be Chicken Little and say, ‘the sky is falling,’ because I think our people will always continue to fight … but, do we need help? Yes, we need help.”

The commission is charged with operating seven public defenders offices across the state who represent anyone who qualifies for representation under their income and asset guidelines. The threshold for representation is capped at household income above 125% of the federal poverty level depending on size of the household.

Finck told legislators they’ve had six public defender vacancies in their offices over the last year, representing 30% of their attorneys. Their attorneys are operating at between 140% to 150% their typical caseloads for the year, he added.

“It’s not easy to ask someone to continue to take on more work when they are already taking on 140% of what they should be,” he said. “But they get it done. And the fact that our system hasn’t collapsed yet is a testament to all those people doing that.”

During exit interviews with departing attorneys, Finck said some have cited burnout and higher pay elsewhere as their reasons for leaving, even if they’ve enjoyed the work itself as a public defender.

Additionally, Finck said, the Legislature passed a new Juvenile Court Act in 2021, which allowed all charged juveniles to receive access to public defender services and increased the amount of juvenile cases the office was required to represent.

He added over the past three years their offices have handled more than 16,000 total cases per year and are on pace to handle 17,140 cases in 2024. Of those, 59% are felony cases, 41% are misdemeanors. He said the charging level is important because felony cases take longer to complete, which leads to higher costs per case.

“As we increase the consequences of criminal conduct, it’s necessarily going to take more resources on our behalf,” he said. “When we start looking at an increase in case numbers, a decrease in staff and an increase in the felonies in which we’re handling, it’s just really putting us in a position that’s a little precarious.”

Finck also said the office needs to outsource more of its cases to private attorneys to keep up with the demand. During 2023, contracted private attorneys handled 72% of the state’s public defender cases, which is an increase resulting from staff turnover, Finck said.

The contractual rates for public defender private attorneys, he said, has increased from $75 per hour in 2023 to $80 in 2024, but the wages are still not comparable to other federal and state attorneys working in North Dakota. In fact, he added, federal court public defenders in North Dakota can earn more than twice the amount of a state-employed public defender. And, attorneys working for the North Dakota Attorney’s General Office earn 50% more when they perform billable services to other state agencies.

“We continue to lag quite a bit behind some of the other people that are competing for that same talent,” he said. “(South Dakota’s) rate this year is $115 per hour, so our people who live in the southern part of the state, if they are licensed in South Dakota and North Dakota … I’m not really good at math, but even my math would tell you that $115 is more than $80.” 

After Finck’s presentation, Rep. Jim Kasper, R-Fargo, apologized to Finck for letting the public defender situation get out of hand.

“I’m appalled and ashamed to hear your report that we are underfunding your agency so tremendously,” Kasper said. “I want to apologize to you for what we have failed to do as a legislative assembly and I hope this next session this legislative assembly wakes up and funds you the way you should.”

Rep. Lawrence Klemin, R-Bismarck, said the commission was formed in 2005 because the state was worried they could be subject to lawsuits if they were not able to meet its constitutional obligations under the Sixth Amendment. 

“It’s kind of ironic and tragic in a way that we have these budget surpluses … but we can’t adequately fund the constitutional right to counsel,” Klemin said. “It’s just not reasonable.”

Klemin also worried the office may need a deficiency hearing to add more money to their budget before the next legislative session.

“If we’re able to fill positions and get people in, that may significantly reduce the amount of contract expenses we’re having to spend,” Finck said. “I’m encouraged to work with the Legislature to solve these problems.”

Read the entire Commission on Legal Counsel for Indigents annual report for FY2023 here.