July 11, 2022 – One of the top priorities of the State Bar of Wisconsin is to ensure all portions of our state’s justice system are adequately funded and supported by the legislature. This includes ensuring we have enough courts, judges, prosecutors, defenders, and court staff and that all are paid fairly and in proportion to their skills and experience.
We asked State Public Defender Kelli Thompson to help shed some light on some of the most pressing issues affecting the public defense side of the justice system, and ways that State Bar members can effectively advocate for themselves and for the justice system.
RR: In April,
you told WisPolitics that your agency is about 20 percent short of being fully staffed, and that shortage of public defenders means it will take years to get past a backlog of 35,000 cases. Is this still the case, and what solutions do you see to addressing the shortage?
KT: During the pandemic, the SPD has consistently had about a 20% vacancy rate for trial attorneys. In addition, about one-third of private bar attorneys left the certification list. Coupled with an increase of nearly 50% in the time it takes for a misdemeanor or felony case to reach disposition means that fewer attorneys have more open cases than ever before. Just for staff attorneys, collectively they had about 32,000 open cases at a point in time prior to the pandemic. As of May 2022, that number stood at 64,000 cases. This is unsustainable and can potentially jeopardize the constitutional rights of our clients throughout the state.
Kelli Thompson began her career with the Wisconsin State Public Defender's Office (SPD) in 1996, working first as an intern while attending law school and then being hired as a Trial Attorney in the SPD's Milwaukee Trial Office. Kelli returned to the SPD in 2003, and served as Training Director, Legal Counsel, and Deputy State Public Defender before being appointed State Public Defender in 2011.
The workload associated with this number of cases means attorneys are working all day, all night, and every weekend. The primary solutions are to increase retention and recruitment. The starting pay for a staff attorney is approximately $27 per hour ($56,000 per year) and the rate for private bar attorneys is well below the market rate. Raising pay to adequately compensate the attorneys providing this core constitutional responsibility will be a primary focus for the SPD in the 2023-25 budget.
RR: A few years ago, the Wisconsin legislature increased the funding rate for private bar public defense appointments from $40 per hour—the lowest in the nation—to $70 per hour. Are there still problems with attracting private bar attorneys to take defense cases?
KT: Yes, as I noted above, the number of attorneys certified to take public defender appointments has dropped significantly. While workload and conditions of practice play a role in that, the rate of compensation does not meet market demands. The system for providing attorneys winds up competing against itself when the SPD rate is $70, but the county appointment rate is at least $100. This results in delays in appointment and less consistent quality of representation statewide. Raising the SPD rate is one of our main goals for 2023.
RR: What other issues are affecting public defenders? The justice system in general?
KT: In general, the problem is workload and compensation. The criminal legal system has been tasked with solving every societal problem from education to housing to substance abuse to mental health. Our prison system should not also be the state’s largest mental health provider. The criminal legal system is the least effective and most expensive tool in addressing these issues. Yet we’ve done little to address them, which just adds to the backlog. And with that burden comes high turnover, low recruitment rates, and real world impacts on public safety. We continue to urge our system partners to explore ways to leverage alternative programs to resolve some of these cases.
For public defenders specifically, other than compensation, workload and conditions of practice are significant issues. The amount of video evidence is growing exponentially. Just in Milwaukee County over 4 months, our office received more than 7,000 hours of video evidence. It would take four full-time employees a year to watch all of that if they had nothing else on their plate. Coupled with the number of open cases, the constant need to open new cases, and the increasing workload associated with those cases, it is an unsustainable situation. In addition, the general frustration of the criminal justice system falls on the shoulders of public defenders. Our staff, like everyone else in the system, need to be treated as professionals, with dignity and respect.
RR: What can State Bar members do to advocate for a justice system that provides access for all citizens?
KT: We can provide facts and make arguments about the most realistic solutions. But, within the confines of the rules of ethics, sharing real life stories with local legislators is important to raise the profile of the issues facing our part of the criminal legal system. Understanding the individuals we represent who walk through the doors of the criminal justice system will better help legislators and other government officials understand the human impact of these budgetary decisions.
What You Can Do: State Bar of Wisconsin Advocacy Network
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