Nov. 6, 2019 – A functional and impartial justice system is at the heart of our core American values. Increasingly, society turns to law enforcement and the justice system to deal with some of our most pressing problems, such as mental illness and the drug and opioid epidemic.
In response to these issues, innovative ideas like Drug Courts, Veterans Treatment Courts, and Treatment Alternatives and Diversion (TAD) programs were developed.
In the 2019-21 state budget, the Wisconsin Legislature and the Governor took steps to ensure additional resources and positions were available to meet the needs of the criminal justice system, including:
Creating more than 64 new Assistant District Attorney positions;
Funding pay progression for Assistant District Attorneys to retain and attract talented attorneys;
Adding positions and resources for the Crime Lab to address increased workload by analysts; and
Increasing the private bar public defender reimbursement rate to $70 per hour, up from $40 per hour to incentivize taking these conflict of interest cases that the State Public Defender (SPD) cannot.
While these actions will have a meaningful impact on the criminal justice system in Wisconsin, more can always be done. The bipartisan Justice Support Initiative (JSI) aims to address every aspect of the justice system to improve the core functions for everyone who intersects with it.
Easing Burgeoning Caseloads by Adding Circuit Court Judges
The last time circuit court branches were created was in 2007, more than a decade ago. Assembly Bill (AB) 470/Senate Bill (SB) 458 permits the creation of up to 12 new circuit branches over the next three years, as determined by the Director of State Courts.
Rep. Ron Tusler (R-Harrison) serves Assembly District 3 and serves on numerous committees, including the Committee on the Judiciary. Reach him by email or by phone at (608) 266-5831.
Rep. Tip McGuire (D-Kenosha) serves Assembly District 64 and serves on a number of committees, including the Committee Criminal Justice and Public Safety. Reach him by email or by phone at (608) 266-5504.
Managing an over packed docket may not be an issue in every county, but many counties, especially those in rural areas and counties with one circuit branch, struggle juggling their dockets, particularly when substitutions are requested or speedy trial motions are filed.
Calumet County, a one-judge county, has seen more than a 40 percent increase in criminal case filings from 2015 to 2018 and heroin and methamphetamine referrals have nearly tripled, according to the Calumet County District Attorney.
Delays not only cause stress and frustration for victims, but also leave the accused sitting incarcerated as they await resolution of their case. Meanwhile, judges from nearby counties, with their own busy dockets, are unaccountable when substituted in or take overflow cases. Without an additional judge, the county is unable to establish a Criminal Justice Coordination Council or drug court.
As the opioid epidemic and drug cases continue to flood the criminal justice system, instituting a drug court would help address these issues.
An additional judge would have the ability to oversee that program, as well as ease the caseload in the county and decrease the time and expense associated with substituting judges in from different counties.
Unlike Calumet County, Marathon County has five judges. It, too, has been rocked by the drug and opioid epidemic and is not immune from the congested court dockets as seen in Calumet and many other counties.
The median time of disposition for a felony case in Marathon County during the 2016-18 period was 171 days. Compared to La Crosse County, a comparably sized county whose caseload per judicial officer is much lower than Marathon’s, Marathon County’s higher caseloads contributed to three times as many cases taking over two years to resolve than was the case in La Crosse County. If Marathon County’s speed to disposition was nearer to La Crosse’s, justice would be better served.
Congested court dockets, sadly, is not the only issue contributing to the systemic problems that plague the justice system.
Providing Access to Legal Services in Rural Areas
The September 2019 issue of Wisconsin Lawyer featured an article highlighting the need for family law attorneys in rural Wisconsin. But as data the authors cited shows, it is not just access to family law services.
Nearly half of all Wisconsin attorneys live in the state’s seven most populous counties – fewer than two in five attorneys practice outside urban areas, according to Wisconsin Public Radio. Some people may need to travel 60 miles or more to meet with an attorney, and more startling statistics abound.
“Wisconsin has 24 counties with 20 or fewer attorneys practicing in the county … Of the Wisconsin counties with 20 or fewer attorneys, all counties except three have 10 or fewer attorneys practicing in the areas of criminal law, family law, juvenile and children’s law, or general practice,” the authors explain in Wisconsin Lawyer.
AB 512/SB 461 creates a pilot student loan repayment program to address this grave deficiency and pressing criminal defense needs.
The program authorizes a student loan payment for attorneys who maintain a law practice either headquartered in, or does a majority of their legal work in counties with a population of 25,000 or less or a population density of 55 or fewer persons per square mile and accepts a minimum of 50 SPD appointments each year.
The State Bar’s Greater Wisconsin Initiative has long been promoting the legal needs of Wisconsin’s rural areas and encouraging young attorneys to consider career options there. This proposal hopes to promote and aid that transition into rural practice shortly after graduation.
This proposal also addresses the access to legal defense counsel for indigent clients. Too often, assigned counsel attorneys are driving hours from urban to rural areas due to a lack of attorneys with offices in rural areas. The result is unnecessary time and expense, for both the client and the state, by having these attorneys drive hundreds of miles to meet with their clients and provide them a zealous defense.
Increasing the number of attorneys in rural Wisconsin will both address the need for general legal services, as well as alleviate the backlog of criminal cases leaving defendants unrepresented and waiting for resolution of their cases.
Attracting Public Defender Talent and Maintaining Competence
Attracting talented, qualified attorneys to work for the SPD on a public servant salary is already difficult, and the SPD already does not have the bandwidth to represent every client who qualifies for its services.
Currently 65 percent of the SPD’s attorneys have less than five years’ experience. The 2019-2021 state budget funded a merit-based pay progression program for prosecutors.
This change was absolutely essential, and a similar change would serve to benefit public defenders. AB 501/SB 468 addresses this by creating and funding a merit-based pay progression system for the SPD to attract and retain talented attorneys for this constitutionally mandated function.
Attracting new and maintaining experienced SPD attorneys will help meet the ongoing needs of indigent defendants across the state. This bill is supported by the Association of State Prosecutors and Wisconsin District Attorneys Association.
Also included in the JSI is AB 514/SB 462. These bills grant additional authority to the SPD to disqualify private bar attorneys eligible for SPD appointments if they: 1) do not meet the minimum performance standards established by the SPD; 2) comply with the rules of professional conduct for attorneys; or 3) meet other baseline criteria.
Facilitating Prosecutor Expertise and Representation
When making law, legislators often turn to the experts at various government agencies or industries to understand problems and potential solutions. Prosecutors have no central entity binding them together across Wisconsin’s 72 counties.
AB 513/SB 460 creates an 11-member board made up of district attorneys and prosecutors from around the state and the Attorney General or his designee. The prosecutor board would, among other duties, review administrative rules affecting prosecutors, serve as an expert resource for the Legislative, Executive, and Judicial branches, and identify and develop methods and best practices that promote professional competence.
What Can You Do?
At time of submission, the Legislature’s Joint Committee on Finance is set to vote on the circuit court branch proposal and have a public hearing on the SPD pay progression proposal. The other proposals await hearings in the Assembly and Senate.
Legislators take the voice of their constituents seriously. Contacting your legislators and asking them to support these proposals is the single most effective action you can take to see these proposals become law.
The Senate and Assembly will have floor dates in early November and in the early months of 2020. Whether you are from rural Wisconsin, Milwaukee or Dane counties, or any number of great communities throughout Wisconsin, these proposals will have a positive statewide impact. Find your legislator and learn how to contact them.