The governor should provide federal ARPA funding to help the State Public Defender's office meet the demand for lawyers to defend indigent defendants in criminal cases, WJI told Gov. Evers in a letter Thursday.
The agency has not been able to recruit enough private bar attorneys to represent defendants who cannot afford their own lawyers. The lack of private lawyers willing to take on cases is a perennial problem, but it has reached the crisis stage during the COVID pandemic as courts shut down and cases backed up in the system. Counties around the state are trying to hire the same lawyers for different cases.
"WJI urges you to use available ARPA (American Rescue Plan Act) money to temporarily increase funding available for private bar attorneys who accept SPD appointments. While state law sets the $70 hourly rate, you can offer designated grants to counties or private agencies to supplement the statutory rate until court backlogs are cleared," WJI Executive Director Gretchen Schuldt said in the letter.
WJI proposed the private bar attorneys receive $150 per hour until the state court backlogs are cleared. Private bar lawyers now are paid $70 per hour. Lawyers who do similar work in Federal Court are paid $155 per hour.
"WJI is aware that money is not the only reason private bar lawyers are not accepting SPD cases. A significant, time-limited increase in the hourly rate will, however, encourage some additional lawyers to take additional SPD cases," Schuldt said. "It will also, significantly, help determine how big an issue pay is in attracting private bar attorneys to indigent defense work."
COVID shut down many courts throughout the state, she said.
"Indigent defendants sat and are still sitting in jail for much, much longer than they would under normal circumstances," Schuldt wrote. "This upends the presumption of innocence and is simply wrong. In addition, studies show that lengthy pre-trial incarceration is a major factor in compelling defendants to plead guilty, even when that is not in their best interest."
"During the pandemic, many judges routinely waived speedy trial deadlines," she said. "This practice raises serious constitutional questions that have not been resolved. Trial delays should not be made longer because the state failed to act to protect defendants’ constitutional rights. The state has an obligation to do everything in its power to ensure that justice is administered fairly, competently, and in a timely manner. To stand by and do nothing while the court system drowns in caseloads is manifestly unjust."
Gov. Tony Evers can free incarcerated men and women without the assistance of the State Legislature. He has simply chosen not to do it.
The Legislative Reference Bureau made that perfectly clear in March, when it released a report entitled, "Emergency Release of Prisoners Due to COVID-19."
Here is what is said about Evers' powers. The added emphasis is ours.
The governor’s authority to release inmates from state correctional facilities derives from both the Wisconsin Constitution and the Wisconsin Statutes.
Constitutional powers of clemency. Article V, section 6, of the Wisconsin Constitution provides the governor with the power to grant clemency to individuals who have been convicted of a crime except in cases of treason or impeachment, subject to certain statutory limitations. This clemency can take one of three forms: a reprieve, a commutation, or a pardon. A reprieve is a temporary delay of punishment, in which case a prisoner could be released and punishment delayed for some period before being reinstated. A commutation is a reduction in punishment and could take the form of shortening a prison term and releasing an offender early. Finally, a pardon is an official act of forgiveness for a crime after the sentence has been completed that restores certain civil rights, but does not erase the record of the crime.
The governor’s use of this authority is wholly discretionary. For example, Governor Scott Walker did not grant clemency in any form during his two terms as governor. Governor Evers has reinstated a pardons board to handle clemency applications. The governor has set criteria for obtaining clemency such that only pardons are available; reprieves and commutations are not currently included in the administration’s application criteria. Rather, a person must have completed his or her sentence at least five years before applying. Under the current policy of the Evers administration, any clemency application by a person who has not completed his or her sentence will be denied. Thus, while the Wisconsin Constitution provides that the governor may use his or her clemency power to shorten prison terms and release inmates, the current administration’s policy suggests that this is unlikely....
The entire LRB document is here.
By Gretchen Schuldt
Advocacy groups on Tuesday called on Gov. Tony Evers to expand the compassionate release program to allow the release of more aged and infirm incarcerated people from state prisons.
"The prison health system cannot handle a massive outbreak of COVID-19. State officials must work to keep our communities safe without putting those serving prison sentences at unnecessary risk," the groups said in a letter to Evers. "You and the DOC (Department of Corrections) must act now to release some of those imprisoned. Lives really are at stake."
The letter was signed by the Wisconsin Justice Initiative; the ACLU of Wisconsin; the Milwaukee Turners Confronting Mass Incarceration Committee; the National Lawyers Guild, Milwaukee Chapter; and WISDOM.
The groups requested Evers to direct DOC to "aggressively" use the program to release qualified, low risk-people from "our overcrowded, understaffed prisons."
"Wider use of compassionate release will reduce prison crowding and help prevent the spread of coronavirus," the groups wrote. "It will reduce stress on prison medical staff and take a long overdue step toward making the compassionate release program an effective and useful tool. The risks posed by coronavirus to too many incarcerated people are greater than the risks these people pose to the public. "
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