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    Wisconsin Lawyer
    June 01, 2017


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    Disparate Treatment Makes Wisconsin Worst State for African American Males

    black male in chains

    I write in response to President Deisinger’s statement on raising salaries to maintain our “excellent” criminal justice system, “Support the Justice System, Better Pay for Its Participants” (Wisconsin Lawyer, May 2017).

    In case you haven’t noticed, Wisconsin is the worst state in the United States for African American males to live primarily because of our discriminatory sentencing and arrests. The State Bar of Wisconsin has known this for 20 years. I was under the impression that the State Bar of Wisconsin had a mission to protect the integrity of the law in Wisconsin.

    Here is my response to the request for an increase in salaries for the judiciary and the other lawyers in the criminal justice system. Why should the taxpayers pay more to the same people who are sending low-risk nonviolent offenders to lengthy prison sentences? Why should the taxpayers pay more to the same people who are ensuring that Wisconsin will continue to hand out racially discriminatory sentences? Are we going to get new faces? Are we going to be less discriminatory?

    Here is my proposal: We raise salaries when sentences go noticeably downward for nonviolent and low-risk offenders, and we no longer are listed as one of the top 10 most racist criminal justice systems. Also, we end revocation to prison for those who haven’t committed new crimes, and we end “truth in sentencing.” If we continue our current “excellent” criminal justice system, salaries should go down by 5 percent each year until we get someone’s attention.

    How can anyone describe our current criminal justice system as excellent?

    Does anyone else out there consider that the Wisconsin “criminal justice system” is an embarrassment and a disgrace?

    I’ve been interested that our magazine, Wisconsin Lawyer, has had no articles at all on discrimination in Wisconsin. Is this a topic no lawyer in Wisconsin has any interest in? Shouldn’t salary increases be awarded for real excellence?

    Nancy M. Barasch
    Nancy M Barasch Law Office, Kenosha

    Editor’s Response: President Deisinger hosted a symposium on this topic in February and wrote about it in his March President’s Message (“When Challenges Beckon, Lawyers Respond”). The Wisconsin Lawyer and our electronic publication, InsideTrack, have published recent pieces on this topic, including the following: “Mass and Disparate Incarceration in Wisconsin: It’s Our Problem,” “Finding a Way Out: Disparate Incarceration in Wisconsin,” and “Wes Moore: ‘Lawyers Are in a Good Place to Lead the Conversation,’” all in the March 1, 2017, issue of InsideTrack; “A Private Conversation on Implicit Bias and Race” (Wisconsin Lawyer, March 2017); and “‘We Can Do Better Than This’: Judge Everett Mitchell on Being Visible in Your Community” (InsideTrack, April 5, 2017).

    We welcome suggestions of specific topics and authors for future content in Wisconsin Lawyer and InsideTrack.

    Bemoaning the Pay Rate for SPD Appointments

    lawyers in jail cell

    In “Country’s Lowest Pay Rate for SPD Appointments Equals Constitutional Crisis” (InsideTrack, May 3, 2017), Joe Forward wrote that Wisconsin has the worst pay rate in the country for private attorneys who handle cases appointed by the State Public Defender (SPD). Private bar attorneys are paid $40 per hour ($25 per hour for travel time), regardless of the case type or complexity and regardless of the lawyer’s experience. The $40 rate has remained largely unchanged since 1978, when the Wisconsin Legislature set the private bar rate for SPD appointments at $35 per hour.

    Forward reported that the Wisconsin Association of Criminal Defense Lawyers (WACDL) and others intend to petition the Wisconsin Supreme Court in May to raise the private bar rate to $100 per hour. (Update: The court heard the petition on May 25.) Members (and others) had a lot to say on this topic. The following is a sample of their comments in the order of posting to the article online.

    Reader: I handled approximately 500 cases for the SPD and a handful of federal cases from roughly 1982 when I graduated from MULS until I retired about 1996-97. I was around when they came up with the flat rate for a certain number of cases and some minor rate adjustments. I would like to show the court the ratio of money spent on the prosecution to the money spent on the defense in the cases I handled. I suspect that “autopsy” of figures would result in a hugely disparate ratio. I see that as statistical evidence of unfair treatment of our clients. I suspect these numbers can, in fact, be generated. We can hardly be expected to jump the resources gap by creative technique, though that appears to be what we are expected to do.

    Mary Lutzen
    Cedar Grove

    Reader: With a pay rate of $40 per hour and an average overhead rate of $41.72, we private bar attorneys could do better working at McDonalds. Do you know anyone else who hasn’t gotten a raise in 22 years? If the so-called “progressives” want a real issue to protest, maybe it ought to be adequate funding of legal services for the indigent as required by law.

    Les Johnson
    Johnson Law Offices, Delavan

    Reader: Why not just sue the state of Wisconsin in federal court to compel the payment of an adequate hourly rate of pay for lawyers taking SPD cases? I don’t do criminal cases and haven’t researched this, but isn’t this something the State Bar should look at? If there is a consensus that it is and support by the bar, I would volunteer to help.

    Bruce Tammi
    Law Office of Bruce Tammi, West Allis

    Reader: How are they going to pay a higher hourly rate when they cannot even meet their obligations to timely pay the bills submitted at $40 per hour? Lawsuits over low rates for a contract you took are unlikely to work. But the slow pay for this rate to me is the bigger problem. No one wants to admit that defending these cases costs money and a lot of it. And yet we are billing for a fraction of what it costs to imprison someone longer than he or she deserves. There are good attorneys and great investigators on these lists. Somehow when other government entities want attorneys for their problems, big firms are hired at much more than $40 per hour. But for the liberty of citizens? Seen as charity work. There are no good reasons for any of this.

    Reader: First, I think it is great that this topic is generating comments as seen above. Even attorneys who do no criminal law should be interested in helping to remedy this substantial problem, and more of us need to be willing to begin doing something to help. Saying it is not my area of practice, and therefore, not my problem, is wrong for multiple reasons.

    As a noncriminal law practitioner, I see one of the problems as similar to an issue that personal injury and worker’s comp attorneys deal with regarding medical costs where payments are accepted at different amounts for the exact same care/treatment, depending on who is paying; and it begs the question of what is the value of the care/treatment in question when the provider is willing to accept so many differing amounts of money.

    In the context of public defender appointments, the uphill battle probably is the dilemma of asserting that $40 per hour is nowhere near enough money, while still seeing many attorneys willing to work for precisely that amount. If nobody accepted appointments at that rate of pay, a change would have to occur.

    It would be nice to have a plan to accomplish a positive change where all Bar members could render some help and assistance.

    John Edmondson
    Edmondson Law Office, Appleton

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