May 8, 2023 – Addressing the crisis in Wisconsin’s criminal justice system remains the State Bar’s top advocacy priority. The issue has also been extensively covered by news organizations and State Bar publications (a review of that coverage can be found on our Justice Breaking Point webpage).

To recap: vacancies and staff shortages among district attorney (DA) and State Public Defender (SPD) offices around the state are occurring with alarming frequency as salaries have not kept pace with the employment market. With fewer staff, caseloads grow and justice is delayed for victims and the accused alike.

One of the first steps to solving a problem is ensuring that the people who have the power to address it are aware of it. Because State Bar of Wisconsin members across the state are taking the initiative to reach out, state legislators have heard loud and clear about the importance of increasing prosecutor and defender pay for the 2023-2025 budget.

There is still one vital component to the criminal justice puzzle that legislators still need to hear from attorneys about: the compensation paid to private attorneys who take assigned defense counsel.

The Private Bar Rate is Still Too Low

The “private bar rate” is the reimbursement rate paid to private attorneys who are assigned public defense cases. This happens when the SPD doesn’t have available staff or when there are conflicts of interest involved in a case.

From a strictly market standpoint, the $70 per hour private bar rate is inadequate to attract enough private attorneys to take these necessary appointments. Many of the attorneys who take public defense cases are small business people, operating out of small or solo-practitioner firms. For too many of them, $70 per hour is not enough to adequately cover their overhead and operating costs.

The Clio 2021 Legal TrendsReport notes that nationwide, the average hourly pay rate for criminal defense attorneys is $181—double Wisconsin’s $70 private bar rate. Attorneys who might otherwise pursue a career in criminal defense are sometimes drawn to private practice or other states. According to the State Public Defender’s office, the number of attorneys certified to take public defender appointments has continued to decline by nearly 20%, from 940 in January 2019 to 772 in August 2022.¹ This is the opposite of what is needed to ensure our criminal justice system is functioning smoothly.

In addition, discrepancy between the SPD's rate (at $70) and the higher court-appointed rate at $100 per hour leads to instances of attorneys waiting for a court appointment. This causes unnecessary delays and adds to the growing backlog of criminal cases that overburden the system.

The Solution

With the state being in a healthy fiscal position, there is ample opportunity to address this problem. The State Bar recommends that agency budget requests from DAs, the SPD, Department of Justice (DOJ), and courts are honored, and their budgets are increased appropriately, including an increase to the SPD's private bar rate to at least $100 per hour.

In order to protect victims, ensure public safety, prosecute criminals, keep our justice system efficient, and protect rural counties' budgets, the legislature and Governor must invest in those fighting for the public's safety by adequately funding prosecutors, public defenders, and the rate paid to appointed defense counsel.

What You Can Do: State Bar of Wisconsin Advocacy Network

The fastest and easiest way to send a message to lawmakers expressing support on increasing funding to the criminal justice system including the private bar rate is by using the Advocacy Network. Pre-written email messages are editable to suit your own thoughts and opinions.

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