The Sixth Amendment provides one of the most recognizable lines from the Miranda warning: “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”
In Wisconsin, this right has become less meaningful due to the state’s absurdly low compensation rate of $40 per hour for private attorneys who take on State Public Defender (SPD) cases. It is the lowest rate in the country for private attorneys who handle SPD cases.
When the caseloads for the state’s 374 full-time public defenders hit maximum level, the state appoints attorneys from the private sector to represent criminal defendants in SPD cases. These attorneys receive $40 per hour, plus $25 per hour for travel time. Wisconsin’s $40 rate has effectively remained the same for more than two decades. It doesn’t even cover the average private attorney’s overhead costs of $41.72, according to the State Bar of Wisconsin’s 2013 Economics of Practice Survey.
The end result: A number of SPD cases go to inexperienced lawyers under flat-fee contracts that create conflicts of financial interest, states criminal defense lawyer John Birdsall, who heads the Indigent Defense Funding Committee of the Wisconsin Association of Criminal Defense Lawyers (WACDL). When lawyers have a heavy load of SPD cases they are handling for a flat fee, it may motivate them to spend less time on each case.
The SPD, in its most recent budget request, noted that of the approximately 1,200 lawyers certified to take SPD cases in 2015, about 13 percent (156) did not take any. Another 31 percent took fewer than 26 appointments. According to the budget request report, lawyers who previously accepted more appointments no longer do so in part because counties and federal courts pay “substantially higher rates.”
Petitioning for a rate increase
Wisconsin’s embarrassing situation must be rectified as soon as possible, and an opportunity to do so is about to occur. A group of attorneys through WACDL are preparing to ask the Wisconsin Supreme Court to raise the private bar rate to $100 per hour.
Under the U.S. and Wisconsin constitutions, all defendants have a right to effective representation. Birdsall and others question whether that right is being met in Wisconsin due to the lack of experienced private attorneys who will take on SPD cases. Full-time public defenders handled about 60 percent of Wisconsin’s 138,858 case openings in 2016. Private bar attorneys handled the other 40 percent.
The group of WACDL lawyers, former and current district attorneys, law professors and other notable legal figures in Wisconsin argue that since the state Legislature appears incapable of ratifying an increased SPD rate, the Wisconsin Supreme Court should intervene. A similar petition asking the court to increase the compensation rate for court-appointed lawyers to $80 per hour was filed in 2010, but the court declined to approve it, citing a lack of empirical data. The new petition is backed by a detailed study of the constitutional crisis in indigent defense.
The legislature has failed for decades to prevent Wisconsin’s criminal justice system from sliding to the very bottom. Birdsall says the Wisconsin Supreme Court is “the last hope that hundreds of thousands of poor people have to access effective assistance of an attorney and true justice.”