The hourly wage of private attorneys representing poor defendants would rise 75 percent under the biennial budget Wisconsin Gov. Tony Evers proposed last week.
Lawyers, however, say the move, while a step in the right direction, won’t solve the problem of delayed justice in the cases of indigent defendants.
Evers’ proposed 2019-21 budget would raise the rate paid private lawyers appointed to represent indigent clients from $40 an hour to $70 an hour. The rate has been $40 an hour since it was lowered from $50 an hour in the mid-1990s.
The Wisconsin Association of Criminal Defense Lawyers released a statement saying the changes would be “inadequate” because they don’t take into account overhead costs for private lawyers.
Private lawyers represent poor inmates the Wisconsin Public Defender’s Office can’t defend. The most common reason in La Crosse County is conflict issues, said Araysa Simpson, regional attorney manager at the La Crosse Public Defender’s Office, in an earlier interview.
One example of a conflict case is when a public defender cannot represent multiple defendants in the same case. Private lawyers take on these cases, but the number of lawyers willing to take them has dwindled because of the low wage.
“We’re encouraged to see that progress is being made, but the kind of progress that’s on the table is not enough to solve the problem, and this problem needs to be solved and needs to be solved yesterday,” said Hank Schultz, a retired criminal defense lawyer of 39 years. He has worked as a private attorney, a public defender and a public defender manager in northeast Wisconsin, and is a proponent of overhauling the system.
The proposed budget includes indexing the wage for inflation.
The Public Defender’s Office proposed the increase of $40 to $70 in its 2019-21 biennial budget proposal.
State Public Defender Kelli Thompson thanked the governor in a statement that said Wisconsin will meet its constitutional obligations by “increasing the rate of reimbursement for private attorneys taking State Public Defender cases (and) indexing the rate to allow for future increase.”
But the Wisconsin Association of Criminal Defense Lawyers argued that the number of lawyers who will take public defender case won’t significantly increase. According to its statement, the association is proposing a bill to “permanently fix this problem.” The bill consists of a structural change so private attorneys have a separate budget line and an independent director who can advocate for future funding instead of the State Public Defender’s Office having to “choose between advocating for additional staff resources or adequate private bar funding.”
The bill also includes a case-based fiscal proposal that depends on the severity and difficulty of each case ranging from a minimum of $100 an hour to a maximum of $140 an hour, basing these levels on federal public defender-rates. The idea is that lawyers who have tougher cases should be better compensated.
According to Schultz, most cases would fall in the minimum range of $100 an hour, an amount the Wisconsin Supreme Court found appropriate for court-appointed attorneys.
Meanwhile, poor people like George Goins are stalled in the criminal justice system, waiting in the La Crosse County Jail for a lawyer before his case can move forward. Goins, 36, of La Crosse, was jailed Sept. 4. He had a lawyer briefly, from Oct. 18 to Nov. 26, and has been waiting for a new lawyer for almost 100 days as of Tuesday.
Goins was charged with burglary, second-degree sexual assault, misdemeanor bail-jumping, battery intending bodily harm, false imprisonment, intimidation of a victim and disorderly conduct. According to La Crosse County Sheriff’s Office, the cost per inmate comes to $97 a day, based on a $6.8 million jail budget. That means Goins has cost taxpayers about $10,000 since Nov. 26.
Goins said he is working on his case in jail for when he does get a lawyer. Goins, who has been in federal prison, described the feeling of being in jail as “very draining. It’s stressful.”
Dale Pasell, a retired La Crosse County Circuit Court judge and the first staff attorney in the Public Defender’s Office in 1979, explained in a previous interview that while defendants wait for representation, witnesses, police officers and victims come to court only to be sent away. No one is investigating the indigent defendant’s case or interviewing witnesses, and the case is going cold. A defendant can lose employment simply because he or she had no lawyer.
The issue isn’t whether an individual is innocent or guilty — that is for the court to decide — but that the defendant has a right to a lawyer.
“We would very much like to find common ground here and resolve this once and for all as soon as we can,” Schultz said.