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    Wisconsin Lawyer
    March 04, 2010

    Inside the Bar: The Justice System?

    The policy decision makers who fund our justice system must see our justice system as a “system,” as the sum of its parts, not as a bunch of discrete functions that have little relation to one another.

    George C. Brown

    Wisconsin LawyerWisconsin Lawyer
    Vol. 83, No. 3, March 2010

    George BrownStatewide, district attorneys have 117 fewer assistant district attorneys than are needed to handle the cases before them. At the same time, the state public defender is short about the same number of staff attorneys. Add to that, the lack of pay progression means that a lawyer starting tomorrow in either of these offices, and other state-paid attorney positions, will need to practice for 67 years to reach the top of the pay scale.

    To handle the overflow of cases and conflicts before it, the office of the state public defender leans heavily on private bar attorneys, who represent about half the indigent clients accused of crimes. Those private lawyers are paid only $40 per hour, the lowest rate in the nation. This is the same rate that already was too low in the late 1980s. And now, because the legislature has chosen to not fully fund the private bar line item in the state budget, those lawyers who represent indigent clients for the SPD often are not paid for months at a time because the state runs out of money before the end of the fiscal year. Of course, because people who work part-time at a hamburger stand make too much money to get a state public defender, the counties are required to pick up the cost of those people who are still too poor to afford representation.

    And then we have our courts. While some county boards adequately fund their portion of circuit court costs, in at least one county the judges have to buy their own office paper. In another, the court clerks are paid part time but work full time because of their dedication to the court. Several of these clerks are nearing retirement, and the judges wonder what will happen when the new employees are not willing to donate their time to the court. A few years ago, as I perused one county’s budget, I learned the county was choosing to spend more on parks maintenance than on the entire county court system. Wisconsin’s state appellate courts, which are often regarded as just another state agency rather than as a separate branch of government, face similar challenges because of continuous budget cuts.

    Over time, the legislature has chosen to criminalize types of activity such that, as one legislator stated, we are sending people to jail for crimes for which we used to send them home to their parents. Former Corrections Secretary Sullivan also decried the fact that Wisconsin was soon to be spending more on prisons than on the University of Wisconsin.

    When the state looks at funding the justice system, it does not view it as a system. It looks at the pieces. It sees the trees, while missing the forest. Several years ago, the State Bar and the courts worked together to try to require a fiscal note be applied to every new law that created or enhanced the penalties for a crime. That way, legislators would have at least an idea what it would cost in terms of additional law enforcement requirements, prosecution and defense, and incarceration. That effort failed miserably.

    Now is the time for policy decision makers to begin to see our justice system as a system, as the sum of its parts, not as a bunch of discrete functions that have little or no relation to one another.

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