By Gretchen Schuldt
La Crosse County now has a 10:45 a.m. court session every day just for inmates waiting to get an appointed lawyer, according to defense lawyer Chris Zachar.
"Every week I watch the same shackled defendants shuffle to the podium in an orange jail uniform so they can hear the circuit judge give them them the same speech about the Sixth Amendment right to counsel superseding their statutory right to preliminary hearings, bond hearings, and the overall progress of their cases," ," Zachar wrote to the State Supreme Court.
Zachar wrote in support of a petition asking the Supreme Court to increase to $100 per hour the $40 per hour rate paid to lawyers appointed by the State Public Defender's Office (SPD) who represent clients who cannot afford to hire a laywer. SPD makes the appointments when the office has excessive caseloads or conflicts of interest.
"These same defendants appear week after week without counsel. They plead for bond reductions and try to explain that they are losing their jobs, their homes, and their families while they wait on an attorney. Witnesses aren't interviewed, evidence isn't preserved, and the lives that these defendants are fighting to preserve fade while they sit in jail. Some of the defendants are unequivocally innocent, but because they are poor they will wait in jail everyone else."
The petition, which Zachar said he agrees with, argues that more lawyers are less willing to accept cases at $40 an hour, an amount that does not even cover overhead.
Zachar said he takes as many appointments as he can because he feels an obligation to protect the "poorest among us."
"But any single attorney taking an SPD appointment is a Band-Aid for a bullet wound. We criminalize new conduct, enforce substance abuse-related bond violations, and create new defendants at a far greater rate than I or any other lawyer in the private bar can competently keep up with," he wrote. "There are more new defendants waiting for appointments at 10:45 every time I appear. Until we have substantially more attorneys who are willing and qualified to represent indigent defendants, the problem will only get worse."
Zachar continued: "The fact that we now need a dedicated calendar to tell the poorest among us that they will have to wait indefinitely for counsel is undeniable proof that our system of justice is at a point of crisis."
The Supreme Court has scheduled a May 16 public hearing on the issue. Individual justices have expressed support for a higher pay rate, but some have also questioned whether they can simply tell the Legislature how to spend state money.
The Sixth Amendment Center, however, argued that the Court can do just that. The Center was hired by petition supporters to analyze Wisconsin's system.
"If the Court is worried about separation of powers concerns, it need not be," the Center said in "Justice Shortchanged, Part II," a report it submitted to the Court. "The Court has inherent power to ensure the effective administration of justice in the State of Wisconsin.84 Although the legislature holds the power to pass budgets, an expenditure policy that creates a financial conflict of interest in which the constitutional right to counsel is compromised cannot be allowed to stand."
The cost of a pay raise for SPD-appointed lawyers can be offset, the report said.
"The Wisconsin legislature can, for instance, work together to increase the reliance on diversion that could move juvenile and adult defendants out of the formal criminal justice system and provide help with potential drug or other dependencies," the report said. "Similarly, lawmakers can change low-level, non-serious crimes to 'citations' — in which the offender is given a ticket to pay a fine rather than being threatened with jail time thus triggering the constitutional right to counsel."
The deadline is tomorrow! Let the State Supreme Court know how you feel about raising the pay for lawyers who represent poor people in criminal cases! Submit your comments by May 1 to email@example.com and firstname.lastname@example.org or snail mail them to Clerk of Supreme Court, Attention: Deputy Clerk-Rules, P.O. Box 1688, Madison, WI 53701-1688.
Below are excerpts from additional comments submitted to the Court.
Where should the money for such a race come from? A tough question for legislature that is loath to raise taxes for any reason. Perhaps a million fewer dollars worth of tax breaks for FOXCOMM would do the trick. – Sam Filippo, Saxon
Our criminal justice system is skewing dangerously, producing a growing disparity of outcomes between clients with funds to retain private counsel, on the one hand, and, on the other, those who must accept court-appointed counsel. The current low rate of pay usually results in less experienced, less skilled attorneys representing the poor and the working poor. – Christopher T. Van Wagner, president, Dane County Criminal Defense Lawyers Association
Over the years, I have gotten many calls from people who are represented by appointed lawyers. Many of the clients are concerned because they have not spoken to their lawyer, cannot reach them on the phone and don't understand the process that will dictate their fate. I look their cases up on the Circuit Court Access program, try to help them understand where they are in the process and encourage them to keep trying to reach their lawyer. Sometimes, I explain that they can ask for a new lawyer if their current lawyer is not communicating with them.
I don't know why their lawyers are not responding to their calls but I imagine the lawyers are overworked, understaffed, under supported and cannot find the time to meaningfully communicate with their clients. I understand that this is the ethical responsibility of the individual lawyer but it is also the responsibility of the government to provide constitutionally adequate counsel to those who cannot afford it. If our government grossly underpays the lawyers it provides for the poor, we will continue to see indigent clients who are under served by their overworked lawyers. – Kathleen Stilling, Brookfield
SPD-appointed lawyers were paid $35 an hour in 1978. That amount today is worth $133 per hour.
My wife Natalie and I started our law firm in Minocqua 29 years ago. At the time we were two of the youngest members of the Oneida Vilas Forest County Bar Association. Twenty-nine years later, we are still two of the youngest members of our local Bar Association. The difficulty in recruiting lawyers to our rural counties is becoming an increasing problem. One of the significant factors contributing to this recruitment problem is the unreasonably low hourly rates paid to court-appointed counsel and State Public Defender counsel. – Thomas E. Lawrence II, Minocqua
In some instances, I have seen cases where our office has approached over 60 attorneys with no interested lawyers. Recently I have seen simple, straightforward misdemeanor defendants still not have counsel for three months. Certainly more serious cases will always be more difficult to appoint, but the run-of-the-mill criminal cases should not be in that category. If these cases are nearing impossibility to appoint there is something seriously wrong with the appointment system. – Eric Maciolek, attorney, Green Bay office, State Public Defender
Furthermore, it appears as though the assigned counsel system is not a co-equal part of the SPD. That is, the antagonism between the SPD and the private bar is greater than the 6AC (Sixth Amendment Center) has witnessed in many states. The SPD does not employ contracted supervisors for the private attorneys and appears to take a ‘hands off” approach once a case is assigned to a private attorney. Worse, the state of Wisconsin has no idea of how many indigent defendants are represented by county-funded attorneys nor the amount of money spent to secure representation because no one is charged with tracking this data. Without even knowing which defendants are being defended by which attorneys, the state is unable to even begin to ensure that each and every defendant receives effective representation. – Sixth Amendment Center, "Justice Shortchanged, Part II"
Most dog groomers and bicycle mechanics here in Madison charge more than $40 per hour. It is shocking that the person who gives a poodle a haircut is compensated more than a lawyer representing an indigent defendant on first-degree intentional homicide charge. Sadly such is the case in Wisconsin. ...
I work on SPD and court appointed criminal cases because I generally enjoy the work. I am willing to bet that this is the same reason most other experienced attorneys give for continuing to take on the work. But at some point it must be recognized that the lawyer's interest in doing the work and perhaps a sense of obligation to do it, are in actuality being exploited by "the system" here in Wisconsin. – Steven Zaleski, Madison
2016 felony and misdemeanor SPD appointments handled by one attorney
I was a regional attorney manager for the State Public Defender Office for 32 years. My region covered 10 counties in Wisconsin include Eau Claire, Rusk, Barron, Pierce, Polk, Pepin, Buffalo, Chippewa, St. Croix, and Dunn counties. Many of these counties were rural and low income. It was a daily struggle to find attorneys to travel to these counties to take our cases. There was always one secretary in our office each day that would spend the entire day trying to farm out cases.… Private attorneys would consistently say it was not worth it to handle these difficult cases for $40 per hour.…
Two years ago I retired from the Public Defender Office and last year I started to take some private work from the local office. I enjoy the work, realized quite quickly that I would not be able to handle felonies effectively for the $40 rate. I immediately began getting calls from throughout the state to take cases. I receive calls from Spooner, Wausau, Ashland, Green Bay and many other locations. I am not willing to drive across the state for $25 an hour. I feel bad that these secretaries are so desperate for lawyers who will take these cases, but I just cannot afford to take these trips or handle difficult cases without support. I did not receive any payments for the first three months of business because they were so far behind in payment. I had to wonder what I would do if I were a new attorney just starting out with no income coming in. ...
When you pay a substandard rate you push people to take too many cases.
It is time that we raise this rate so that we can keep qualified attorneys on our list and they can make a living wage. – Dana Smetana, Eau Claire
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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