The Public Defender Crisis in Wisconsin
Updated: Oct 21, 2018
Public Defenders are some of the most dedicated, experienced and highly-skilled attorneys out there. Many people contact me because they are concerned about being represented by a public defender and I always do my best to correct the misperception that public defenders are somehow worse than “real lawyers.” I myself started my career as an Assistant State Public Defender and ended up representing thousands of people in that role. Make no mistake, experienced public defenders are some of the best criminal defense lawyers a client can have.
But as a state agency, the Public Defender’s Office is at the whim of politicians, and people who often campaign as tough on crime and compassionate with victims are often reluctant to fund an agency whose goal it is to defend people charged with serious crimes. In recent years, Wisconsin has rapidly created new crimes, imposed more serious consequences for existing crimes, and turned a huge number of offenses into felonies with mandatory minimum prison sentences. The legislature continues to create new prosecutor positions, At the same time, funding for the State Public Defender’s Office has remained relatively unchanged, in some years, actually decreased by the legislature. As a result, the legislature has created a bottleneck by encouraging more criminal prosecutions, but not increasing funding for more defense attorneys to represent all of the new defendants who are charged with crimes.
The Public Defender’s Office in Wisconsin represents indigent clients from two pools of attorneys: (1) the staff attorneys or “public defenders” who work for the state and exclusively defend poor clients, and (2) a pool of private attorneys who agree to represent clients that the public defender’s office cannot. Oftentimes the Public Defender’s Office is unable to represent clients because they already represent codefendants or otherwise have a conflict of interest in representing a client. This becomes a major issue in drug cases, where multiple defendants are arrested because the entire Public Defender’s Office is limited to representing only one defendant.
THE CERTIFICATION BOTTLENECK
Generally, the more serious the charge, the more difficulty the Public Defender’s Office has finding a private bar attorney to represent a client. The Public Defender’s Office has certification levels based on the complexity and severity of a criminal charge, and requires private bar attorneys to prove that they have the trial experience, maturity, and judgment to handle certain cases. This requirement is a good thing, as it ensures that inexperienced or unqualified attorneys do not represent clients in cases where a client is facing large amounts of prison time. However, in certain cases, particularly serious sexual assaults, major drug cases, and most homicides, there are few, if any attorneys in a region certified to represent people charged with serious felonies. I am one of a handful of attorneys in the State of Wisconsin certified to represent clients in Class A felonies. As such, I routinely get phone calls from Public Defender’s offices as far away as Ashland, Green Bay, and Racine because they do not have local attorneys that are able to take these cases on. When attorneys are unavailable or unwilling to take these cases on, clients can wait for months without an attorney.
WHY LAWYERS CAN’T TAKE CASES FOR $40.00 AN HOUR
The other major consideration is cost. Private bar attorneys in Wisconsin who take on public defender appointments make a flat rate of $40.00 an hour. This was reduced from $50.00 an hour in 1995. This rate applies regardless of how complex or stressful a case may be. In other words, an attorney handling a three dollar worthless check case for the public defender’s office makes the same hourly rate as the attorney handling a First Degree Intentional Homicide. Attorneys are not paid until about 90 days after a case is closed, so in complex felony cases, private bar attorneys may not be paid for work for months or even years after they begin representing a client.
Every time I complain about the SPD rate, someone always speaks up: But Chris, isn’t $40.00 an hour a lot of money? Most people don’t make that much! That’s a fair question, and one I used to ask myself before I went into the private bar. The economics of a modern law practice mean that most lawyers lose money by taking on a public defender case. As a solo practitioner, I am required to pay self-employment taxes to the state and federal government. Right off the bat, this comes to about 40 percent of every dollar I earn. So if the Public Defender’s Office pays me $40.00 an hour, I am earning $24.00 after taxes. But this doesn’t account for the actual expenses of running an office. There’s rent, the costs of running an office (internet, phone, computers, office supplies, computerized legal research, etc.), annual licensing fees, required continuing legal education, required malpractice insurance, business licensing fees, and our legal assistant’s payroll that all come out of the remaining $24.00 before I even see a dime. Most law offices, ours included, require more than $40.00 an hour just to keep the lights on. Even with an efficient office like ours, an SPD case never generates more than minimum wage.
It’s also important to remember that even fresh law school graduates oftentimes bill private clients around $150.00 an hour. Experienced attorneys generally charge much more. When a private attorney takes on an SPD appointment, he or she gives up time that could be spent on cases that generate substantially more income. In fact, Wisconsin’s reimbursement rate for private bar attorneys is the lowest rate in the nation. That’s right, lawyers for indigent defendants are paid less in Wisconsin than Mississippi. For these reasons, it’s unsurprising that many private bar attorneys refuse to take SPD appointments. I agree to represent the occasional SPD client because I strongly believe that everyone is entitled to an excellent defense regardless of their ability to pay. But the harsh reality for solo practitioners is that representing an SPD client results in a loss of money, so even though we want to represent clients in need of a lawyer from the SPD, we are forced to prioritize private clients in order to make a profit.
THE SUPREME COURT PETITION
For these reasons, our State Supreme Court recently ordered that county-appointed attorneys receive a minimum of $100 per hour for representing indigent defendants. The Court repeatedly declared that indigent defendants are waiting absurdly long time for lawyers, and that this delay has substantial impact on a client’s life. Involving a defense attorney early in a case ensures that witnesses are talked to, evidence is preserved, and a client is properly protected throughout their prosecution. Incarcerated clients who are denied the right to an attorney for months on end tend to accept poor plea agreements, speak to the police when it isn’t in their interest to do so, and lose out on the ability to quickly preserve evidence (surveillance video, text/social media messages, witness interviews, etc.) crucial to their defense. (In its order, the Supreme Court quoted a letter I wrote that described the crisis in La Crosse County in its order raising County rates).
However, the State Supreme Court stopped short of requiring the SPD to pay the same rate for indigent defense. As a result, thousands of poor defendants wait weeks, and oftentimes months, for an attorney and will continue to do so until the legislature incentivizes attorneys to represent the most vulnerable defendants at a rate that won’t put them out of business.
I want to close with a heartbreaking story I read last week about a young man who was jailed in Wisconsin for armed robbery, insisting that he was innocent. The young man didn’t have money to hire a lawyer and was jailed on a high cash bond. When he got to his preliminary hearing, a critical phase of felony prosecution, the judge (one that I’ve practiced in front of and respect) forced him to represent himself. The courtroom staff laughed at him when he described his struggles to obtain a public defender and shrugged their shoulders when asked what could be done. Hopeless and helpless, this young man killed himself in jail. No matter the accusation, everyone deserves better than this.