September 27, 2019 – The significant criminal justice gains from the state budget bill activities continue into the fall legislative session. An historic level of investment from the legislature and Governor’s office to address the pressing needs within Wisconsin’s criminal justice system resulted in an increase in the private bar rate for public defense cases to $70/hour, provided additional funding for counties to help with an increase in the court appointment rate, and funded 65 additional prosecutor positions and Assistant District Attorney (ADA) pay progression.
The State Bar of Wisconsin strongly supported these efforts and believes they will help to ensure that both crime victims and defendants have access to justice and speedy trials. But after years of simmering problems and a lack of adequate funding and legislation, there are still many unmet needs within the criminal justice system and much room for continued improvement.
A new package of bills is now circulating in the legislature: the “Justice Support Initiative” sponsored by Representatives Ron Tusler (R-Harrison), Mark Born (R-Beaver Dam), Amy Loudenbeck (R-Clinton), Jim Ott (R-Mequon), Paul Tittl (R-Manitowoc), Tip McGuire (D-Kenosha), and James Edming (R-Glen Flora); Senators Jerry Petrowski (R-Marathon), Van Wanggaard (R-Racine), Patrick Testin (R-Stevens Point), and Janet Bewley (D-Mason); and co-sponsored by many others. The bill package would address some of those lingering issues, and offer solutions for the problem of heavy caseloads, long waits for trials, and a lack of available public defenders in parts of the state. Below is a summary of the circulated package...
Pay Progression for State Public Defenders
The State Bar of Wisconsin supports compensation and benefit packages that are adequate to attract and retain public defenders to ensure that ethical, effective representation is provided to each client. Assembly Bill 501/Senate Bill 468 would provide for “pay progression” for attorneys in the Public Defender’s office. The State Bar believes that retaining staff attorneys with knowledge and experience is critical to help ensure that all citizens, including the indigent and poor, are guaranteed their constitutional Sixth Amendment right to legal counsel. The State Bar of Wisconsin supports this important legislation.
An imbalance occurred when funding for a full step of pay progression for State Public Defenders (SPD) did not continue in the 2019-2021 budget process. Like state prosecutors offices, which received pay progression in the budget, the SPD uses pay progression to retain staff with the knowledge and expertise for complex cases and the ability to mentor new attorneys.
Public Defender Tuition Reimbursement Pilot Program
Despite their deep commitment to ensure access to justice for all citizens, many find that the rising cost of a legal education forces them to forego any form of public service or to practice in fields or settings that result in substantially lower loan repayment opportunities. The State Bar of Wisconsin supports this legislative effort to reduce the cost of a legal education and to provide loan repayment assistance programs.
The State Bar of Wisconsin believes that Senate Bill 461 can be an important tool to bringing more attorneys to rural areas, ensuring access to justice for victims and defendants alike, and encouraging attorneys to establish their practices and put down roots in rural communities.
According to the bill sponsors, “The bill establishes a pilot program for tuition reimbursement for public defenders in rural Wisconsin counties. To be eligible, the attorney must perform the majority of their legal work in a county with 25,000 people or less, or with a population density of 55 persons per square mile or less.* Eligible attorneys would receive up to $20,000 in reimbursement per year.”
Last session, an identical bill passed out of both the Assembly and Senate committees. This session, this program was also included in AB 145/SB 127 (the Criminal Justice Coalition budget request).
The State Bar of Wisconsin supports the creation of an independent prosecutor board and a State Prosecutors Office. The board will serve to protect the interests and funding for elected District Attorneys and assistant district attorneys in Wisconsin.
Senate Bill 460 would create an 11-member prosecutor board consisting of district attorneys and prosecutors from across the state and the Attorney General (or his designee). The bill also creates the State Prosecutors Office (SPO) consisting of an executive director and a legislative liaison. The executive director shall:
- manage policy initiatives;
- represent the Prosecutors Board before the governor, legislature, courts, and bar associations;
- prepare any fiscal estimates for bills affecting prosecutors or the SPO; and
- identify methods and practices for district attorneys that promote professional competence, ethical practices, and evidence-based practices.
Similar to other public employee groups, this bill would provide for a legislative liaison in place to handle the duties assigned to the prosecutor board and SPO. The authors of the bill note, “The State Prosecutor Board would offer a place in the Capitol” to a vital portion of Wisconsin’s criminal justice system and some of our most important state employees.
Last session, a similar bill passed out of both the Assembly and Senate committees. This session, this program was also included in AB 145/SB 127 (the Criminal Justice Coalition budget request).
Additional Circuit Courts
The State Bar of Wisconsin Supports an increase in circuit court branches when the Director of State Courts determines that new courts are needed based on an analysis of caseload standards. Assembly Bill 470/Senate Bill 458 would create 12 additional circuit court branches to be phased-in over the next three years: four in 2020; four in 2021; and four in 2022.
For a county to be eligible for an additional circuit court branch, the county must pass a resolution requesting an additional circuit court branch, as well as have appropriate infrastructure in place to support an additional circuit court branch by May 31st of the year the circuit branch commences. If a county has met those requirements, the director of state courts will determine where to allocate the branches. Additionally, the director of state courts may also require a county to apply for a drug treatment court grant if it does not already have a program. Elections will be held for all new circuit court branches in the spring of their creation.
The legislative authors note that in the last 3 decades, there have been 32 bills introduced that have created additional circuit court branches. Nine of those 32 bills were eventually signed into law. Additional efforts to include new branches into the state budget bill have been unsuccessful.
The most recent circuit court branch additions were in 2007-2008. Since then, courts’ dockets across the state have become more challenging with the changing dynamics of cases.
Regulation of State Public Defenders
Senate Bill 462 expands the Public Defender Board’s rulemaking authority to related to private bar attorney certification, decertification, or recertification and adds the following reasons as grounds for exclusion of private bar attorneys to take public defender cases:
- The attorney fails or has failed to meet minimum attorney performance standards adopted by the state public defender;
- The attorney fails or has failed to comply with Supreme Court Rule Chapter 20 (Rules of Professional Responsibility);
- The attorney engages in conduct that is contrary to the interests of clients, the interests of justice, or the interests of the state public defender;
- The state public defender learns of any information that raises a concern about the attorney’s character, performance, ability, or behavior.
*Eligible Rural Counties for loan forgiveness include:
Vernon, Vilas, Washburn, and Waushara