Justice Without Partisan Boundaries
2001 Assembly Bill 536 restores a bipartisan plan to
adequately fund the Office of the State Public Defender, thus preventing
a tax shift from the state to the local level in paying for indigent
representation.
by Sheryl K. Albers & Brian B. Burke
OUR CRIMINAL JUSTICE SYSTEM rests on five very important foundations:
law enforcement personnel, prosecutors, defense attorneys, judges, and
prisons. When we unduly burden one or more of these foundations, we fail
in our responsibility to maintain a fair and just process.
While we need to carefully review funding in all areas of our justice
system, indigent representation remains our most pressing concern. In
1963 the U.S. Supreme Court determined that the Sixth Amendment to the
U.S. Constitution grants every citizen the right to legal representation
in a court of law when accused of a felony, even if the citizen cannot
afford an attorney. In Gideon v. Wainwright,1 the
Supreme Court enunciated that "reason and reflection" required the Court
"to recognize that, in our adversary system of criminal justice, any
person haled into court, who is too poor to hire a lawyer, cannot be
assured a fair trial unless counsel is provided for him." The Gideon
decision laid the groundwork for subsequent U.S. Supreme Court decisions
expanding the right to counsel to also include misdemeanor cases.
States decide how they will fulfill the constitutional duty to
provide counsel to the poor. Wisconsin does so in three ways: attorneys
in the Office of the State Public Defender (SPD); private bar attorneys
contracted at $40 per hour with the SPD; and private bar attorneys
appointed by local judges, usually paid at the $70 per hour rate
specified by Wisconsin Supreme Court rule. SPD representation and SPD
contract attorneys not only provide the least expensive method of
providing representation, but also the funding for both derives from
general purpose revenue (income and sales tax revenues). On the other
hand, private bar attorneys appointed by local judges are paid from
county funds - at property taxpayer expense.
Federal and state case law does not delineate exactly what fixed
income level constitutes indigency. However, most courts will appoint
counsel for someone at or below the federal poverty level. Section
977.07(2) of the Wisconsin Statutes establishes criteria for obtaining
counsel through the SPD. However, even those guidelines do not resolve
the appointment of counsel question before local judges. In 1991 the
Wisconsin Supreme Court held, in State v. Dean,2 that
such criteria cannot serve to deny counsel to an otherwise-indigent
individual:
"The court should consider all relevant evidence presented by the
defendant that is material to the defendant's present ability to retain
counsel. The trial court must disregard the public defender's
established cost of retained counsel ... and consider the fees charged
by local private counsel in similar cases. The review at this stage will
ultimately involve examining on a case-by-case basis, factors and
circumstances that the legislature is ill equipped to consider."
Wisconsin's SPD standards fall well below the federal poverty
standard; thus, state taxpayers do not foot the bill for anyone who
would not otherwise receive representation under the U.S.
Constitution.
Gov. McCallum originally cut nearly 5 percent from the SPD budget -
the largest cut of any state agency. To manage these cuts, the SPD
estimated it would need to lay off one out of every seven assistant
public defenders. Members of both parties on the Joint Committee on
Finance found this possibility unacceptable, and we successfully
developed a bipartisan plan that realized cost savings, while
maintaining our constitutional duties. In order to reduce overall costs,
the plan included hiring 60 new state attorneys and establishing a new
state office to handle conflicts cases. We support raising the hourly
contract rate to a more reasonable amount; however, that was not
possible due to revenue shortfalls. The committee unanimously approved
the plan, and it remained unchanged until it reached the governor's
desk.
Unfortunately, Gov. McCallum used his veto pen to once again cut the
SPD budget and its attendant positions. However, due to legislative
repositioning of funds during the budget process, the problem shifted
from having to lay off state-employed attorneys to not having enough
money to contract with needed private bar attorneys. In the end, the
overall cut to the SPD currently stands at more than 8 percent of its
base budget, a devastating blow to an agency that recently received a
Forward Wisconsin award for efficient management.
SPD attorneys currently operate with statutory caseloads 23 percent
higher than national standards. Demanding that they represent more
clients would jeopardize their ethical responsibility to provide
effective counsel. In addition, with the private bar appropriation
decimated, the SPD expects to run out of contract money by June 30, 2002
- the end of the first year of the biennium. When that occurs, the SPD
will have no choice but to advise private bar attorneys asked to take
cases beginning on July 1, 2002, that they will not receive payment for
their work until July of 2003. The SPD presently reports difficulty
contracting with private bar attorneys, given the low statutory contract
rate of $40 per hour. The prospect of a 12-month payment delay
undoubtedly will result in few private bar attorneys willing to take SPD
appointments after June 30, 2002.
When this anticipated scenario occurs, the burden will rest upon
circuit court judges to appoint attorneys to handle cases. If all judges
were to appoint attorneys at the minimal Wisconsin Supreme Court rate of
$70 per hour (and some counties already pay more), it could cost
property taxpayers as much as $33,250,000 for one year of
representation, based on current county caseloads. For example, the SPD
estimates the veto will cost Milwaukee County up to $11,037,322; Brown
County could experience $1,597,651 in new legal service fees. Of course,
caseloads also could increase in the next two years, creating an even
bigger fiscal problem.
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 Rep. Sheryl K. Albers, attends the U.W.
Law School. Elected to the Assembly in 1991, she currently serves as a
ranking member of the Joint Committee on Finance.
 Sen. Brian B. Burke, Georgetown 1981,
is a former Milwaukee County assistant district attorney. Elected to the
Senate in 1988, he currently serves as Senate chair of the Joint
Committee on Finance.
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The indigent will receive representation. To restore the fiscally
responsible bipartisan plan, the Wisconsin Legislature must allocate
$3,267,900 to the SPD. If the legislature does not act, attorney bills
totaling up to $33,250,000 will hit the doors of county courthouses next
fall. To prevent this tax shift from the state to the local level, we
joined with 50 Assembly and 20 Senate colleagues to introduce 2001
Assembly Bill 536. However, we need members of the legal profession to
collectively request expedient action on our legislation before next
June, and we encourage members of the State Bar to contact their
legislators to ask for their support of this important legislation.
Wisconsin maintains a world-renowned public representation system,
led by Dan Berkos, chair of the Public Defender Board. The SPD
consistently receives state, national, and international accolades for
providing effective and efficient criminal defense services to the
indigent. In fact, Nicholas Chiarkas, our state public defender, founded
Justice Without Borders, an international organization to improve
criminal justice systems worldwide. We understand that a well-balanced
legal system creates a more stable and safe society. In Wisconsin, the
Office of the State Public Defender is a foundation of our legal system
that deserves protection through bipartisan policies reflecting sound
economic judgment and an understanding of our constitutional duties.
Justice, after all, knows no partisan boundaries.
Endnotes
1 Gideon v.
Wainwright, 372 U.S. 335 (1963).
2 State v. Dean, 163
Wis. 2d 503 (1991).
Wisconsin Lawyer
