By Gretchen Schuldt
Lawyers in the State Public Defender's office would get pay raises, as would private bar attorneys who agree to represent indigent clients, under Gov. Evers' proposed 2023-25 budget.
The agency, though, would lose 63 federally funded attorney positions while gaining 50 support staff jobs. The total number of full-time positions would drop by 13 over the biennium, from 682.85 this fiscal year to 669.85 in 2025. It would also put additional pressure on lawyers already struggling with high caseloads.
Evers' budget would increase the starting pay for assistant state public defenders from $26.70 per hour to $35, the same amount he proposed for assistant district attorneys. Wisconsin's pay is well below that of many other states, including those of Montana ($36.96 per hour), South Dakota ($39.59), Texas ($40.87) and Oregon ($43.60) according to the agency's budget request.
SPD has had difficulty in recruiting and retaining staff attorneys, according to the request.
"Despite a significant increase in the number of attorney positions posted for recruitment, there has been a decrease in the number of individual applications," the agency said.
SPD attorney applications
The pay for private lawyers who agree to represent SPD clients when staff lawyers have conflicts or workload issues would increase from $70 per hour to $100 per hour and $50 per hour for travel, under Evers' budget. SPD requested a rate of $125 per hour for in-court work, $100 for out-of-court work, and $50 for travel. The travel rate is now $25 per hour.
"The current $70 per hour rate has been cited by private bar attorneys as one of the main factors in their decisions to not accept SPD case appointments," SPD said in its budget request. Counties pay at least $100 per hour when judges appoint lawyers, SPD said, giving counties a competitive advantage when seeking lawyers to take cases.
"The number of attorneys who have actively taken public defender appointments has declined significantly during the pandemic, from 940 attorneys certified in January 2019 to only 772 attorneys in August 2022, a 17.9% decrease," SPD said.
There now are about 770 lawyers on the appointments list, but 13% did not take any cases in fiscal 2022 and 39% took fewer than 26.
"The average number of contacts statewide that it takes to appoint a private bar attorney is just over 123. In some counties, it can be more than 200, with the outliers taking more than 1,000 contacts to appoint a single case," the agency said. "There is not a county or jurisdiction in the state that has not felt these effects."
It is not clear that $100 an hour will be enough to attract attorneys to take the appointments. Clio, a legal practices management firm, said in its Legal Trends Report in 2021 that the average billing rate for Wisconsin lawyers of any type is $248, and nationally the average hourly rate for criminal defense lawyers is $181, the request said.
Evers refused SPD's request for $687,000 for additional expert witness expenses, even though those costs have risen 311% since 2010. He instead said the agency should reallocate funds from other areas.
SPD expert witness costs
He also recommended reallocating funds to cover the $402,000 in new funding SPD requested for increased costs related to transcripts, copying, discovery, and interpreters. The requested increase was the amount of the shortfall in that budget in fiscal 2022.
SPD transcript, interpreter, and discovery costs
Evers again proposed legalizing marijuana, as he has in the past. He also proposed "requiring a diversion and restitution alternative for certain misdemeanor offenses" but did not identify what those were. SPD proposed a diversion program for disorderly conduct offenses if the defendant has not been convicted of a felony and has not been convicted of a similar offense in the past three years.
SPD handled 4,896 disorderly conduct cases in fiscal 2022, it said in its budget request. Under its proposal, about half of those could have been diverted, saving taxpayers $1.3 million.
Overall, under Evers' proposal, the SPD budget would increase from $114.7 million this year to $137 million in fiscal 2025, an increase of $22.3 million, or 19.4%.
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