At a May 25 press conference at the State Capitol, attorney John Birdsall speaks on a petition to raise the hourly rate paid to private attorneys appointed to represent indigent defendants by the State Public Defender. The rate has not changed in more than 20 years. Birdsall says Wisconsin's rate, the lowest in the country for private bar indigent defense, is causing a constitutional crisis.
May 25, 2017 – A coalition of legal experts filed a petition (17-06) today asking the state supreme court to remedy what it views as a constitutional crisis caused by the nation’s lowest pay rate for lawyers taking appointments from the State Public Defender (SPD).
At $40 per hour, Wisconsin has the worst pay rate in the country for private attorneys who handle appointed cases for indigent criminal defendants who have a constitutional right to effective representation of counsel. Such appointments are necessary to address conflicts and SPD caseload overflow. SPD appoints about 40 percent of all cases to the private bar.
The private bar pay rate has not changed since 1995, more than 20 years ago, when the legislature reduced the pay rate from $50 per hour for in-court time ($40 out-of-court), to a uniform $40-per-hour rate ($25 per hour for travel time). From 1978 to 1992, the pay rate was $35 per hour, meaning private indigent defense attorneys today make $5 more than they did 39 years ago.
That low pay rate is causing a constitutional crisis, petitioners say, because it creates financial conflicts that jeopardize the state’s ability to provide constitutionally mandated effective assistance of counsel to indigent persons accused of crimes in Wisconsin. In addition, it has greatly reduced the pool of experienced lawyers that take such cases.
The petitioners, which include the Wisconsin Association of Criminal Defense Lawyers (WACDL), the Wisconsin Association of Justice, and individual bar members – including State Bar President Fran Deisinger and incoming President Paul Swanson – are asking the Wisconsin Supreme Court to invoke its authority and raise the rate to $100 per hour.
“[T]he unreasonably low private bar rate has dire effects on our justice system,” Deisinger said in a press conference today in the Assembly Parlor of the State Capitol. The State Bar of Wisconsin’s Board of Governors voted to support the petition in April.
“If this outdated private bar rate is raised to a reasonable level, the pool of qualified attorneys willing to take cases will increase and the system’s efficiency will improve.”
John Birdsall, chair of the WACDL’s Indigent Defense Funding Committee, recently told the Milwaukee Journal Sentinel that the $40 per hour rate “might seem like a lot to a layman,” but that amount quickly disappears to cover law practice overhead. That creates financial conflicts, says Birdsall, who spoke at today's press conference.
The court could consider the petition as early as next month, before the court’s term ends. But it is more likely that any hearing or consideration will take place in the 2017-18 term.
For more information about the petition and the “constitutional crisis” that petitioners are asking the supreme court to address, read the State Bar’s recent InsideTrack article.
· Petition 17-06
· Appendix 17-06