Wisconsin faces a constitutional crisis because it is in "50th place in these United States with respect to paying for defense counsel," a judge told the State Supreme Court.
Eau Claire County Circuit Judge William M. Gabler Sr. also said the State Public Defender's office (SPD) is "facing personnel shortages, not only within the ranks of full-time attorneys, but also in recruiting private bar practitioners to take public defender appointments."
Gabler wrote in support of a petition asking the Supreme Court to increase to $100 per hour the $40 per hour rate paid to SPD-appointed lawyers who represent clients who cannot afford to hire a laywer. SPD makes the appointments when the office has excessive caseloads or conflicts of interest.
"The right to counsel is a hollow constitutional right if lawyers are paid an hourly rate that doesn't even meet their overhead expenses," Gabler said.
When he graduated law school, Gabler said, the dean worked to make it possible for the newly minted attorneys to quickly "start working and billing at the rate of $35 per hour. It is unconscionable that private lawyers, representing public defender clients, are essentially paid the same hourly rate a new law graduate billed in 1974."
Thirty-five dollars in May 1974 is worth about $180 today, according to the United States Bureau of Labor Statistics' inflation calculator.
The Supreme Court will continue to accept comments on the rate petition until Tuesday, May 1, and has scheduled a May 16 public hearing on the matter.
Gabler is just the third active judge to submit comments on the proposal. The other two are Ashland County Circuit Judge Robert E. Eaton and Bayfield County Circuit Judge John P. Anderson.
No sitting Milwaukee County judge has submitted comments, but retired Milwaukee County circuit judge Thomas P. Donegan did. He wrote in favor of the higher rate.
"They, the attorneys, deserve better, and certainly the poor and the outcast who are their clients deserve the same access to justice justice that other defendants receive," he said.
Burnett County submitted a resolution, approved by the County Board, that supports a "market rate" for SPD-appointed lawyers.
Judges are forced to appoint counsel at county expense because public defender's office cannot find lawyers willing to work for $40 an hour, according to the resolution.
County-appointed lawyers are generally paid $70 per hour.
"This results in costs to counties to appoint counsel, increase costs to jail persons held pre-trial pending appointment of counsel, inefficiency for courts and law enforcement, and a delay in obtaining justice for victims," the resolution says.
The deadline is approaching! 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.
The majority of comments filed thus far are from attorneys. Below is a small sampling.
"I have found that in order to keep my law practice solvent, I cannot afford to take more than a handful of SPD appointments each year. ... Last year I did a SPD-appointed 1st degree intentional homicide case in Dane County that resulted in 300 hours of billable time and an eight-day jury trial. That case was a major financial hit to my law practice and something that I can't afford to do again anytime soon." – Tim Kiefer, Madison
"I have seen defendants on intake days state that they have been in jail for weeks without meeting with a lawyer. This while they are still assumed innocent under the law and unable to make bail. Other defendants are represented by counsel that must travel great distances and have had difficult in maintaining contact with their clients. Indigent clients often have greater issues with communication as they limited phone minutes or inconsistent housing. Local attorneys can help alleviate these issues by being more readily available to meet with clients. Our treatment courts and diversion programs suffer because of the quick acceptance required to join the programs as well. -- Tyler W. Wickman, Ashland
"It is even more frustrating when you work on a case for a year or longer and an expert who is hired to do a few hours of work on the case is compensated twice or three times more than the attorney who handled the entire case. There are fewer and fewer attorneys and experts willing to put in the time and effort to represent and evaluate indigent clients.
"I am well aware that this is a problem across the state because I have been consistently asked by various public defender offices to represent clients in counties that are up to 200 miles away. Clients are waiting in jail for months before an attorney can be appointed to represent them, because the public defender's office struggles to find attorneys to take on the cases. The time is now to properly compensate attorneys who handle public defender and County appointed cases. I am very concerned of what further damage will happen to the Wisconsin judicial system if the change is not made." – Erika Amundson, Eau Claire
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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