Wisconsin Lawyer
Vol. 81, No. 9, September 2008

A Long Cup of Coffee with SPD Nick Chiarkas

by Randy Kraft

Sidebar:

• Free State Bar CLE seminar for public defender appointments

hen Israel's first National Public Defender, Ken Mann, was putting together its indigent defense program, he sought the advice of Wisconsin State Public Defender Nick Chiarkas. Included in Chiarkas's counsel was the importance of not staying behind one's desk but instead walking around and meeting people, going to the public defender's different offices, and talking to judges and to the members of the legislature, not just as a goodwill ambassador but also to find out what concerns people have. "I call it a long cup of coffee," Chiarkas said, "because it's cordial and it centers on listening."

On the 20-year anniversary of Nick Chiarkas's tenure as Wisconsin's State Public Defender, the author had "a long cup of coffee" with Chiarkas to get his reflections on the past two decades, including Chiarkas's views on current issues, challenges, and controversies facing the justice system and the State Public Defender's Office.

Kraft: Nick, you grew up in a New York City housing project, became a New York City police officer, and - eventually - now the Wisconsin State Public Defender. It seems like an improbable and inconsistent journey.

Chiarkas: Not at all. There is a direct relationship between growing up poor and wanting to use my law license to represent poor people. Nor is it inconsistent with working as a police officer. I became a cop because I didn't like bullies, and I became a public defender because I see the state as having so much power over a poor person accused of a crime who is presumed innocent. There is a tendency for government to bully the poor and less fortunate. Public defenders stand and defend the poorest citizen against the awesome power of the state, and by doing so public defenders fulfill the promise made in our Pledge of Allegiance to protect "justice for all."

Kraft: I'm sure you've had the opportunity to see significant changes in the agency over the past 20 years. Let's first focus on the accomplishments - what efforts are you most proud of?

Chiarkas: I'm very proud of the fact that we're the only public defender program in the country to receive three quality awards; the last one at the mastery level from the Malcolm Baldrige-based Wisconsin Forward Award. That's a very difficult thing to achieve, and it shows that not only are we doing a great job representing poor people, but we're doing it in the most cost-effective way possible. We're not skimping on quality, and at the same time we're not overspending.

Because of this, we were asked by the U.S. State Department to go to Israel and Gaza to help develop their public defender systems; and later to Japan. And we've had contacts from many other countries. In addition, we're called on by other states, the U.S. State Department, and the U.S. Department of Justice and the National Legal Aid & Defender Association. For example, we were asked to help in Michigan and Ohio, and after Hurricane Katrina in New Orleans.

Kraft: In 20 years' time, the practice of law must have changed. What have you observed in regard to changes in practice?

Chiarkas: Because of overcrowding in some jails and prisons, more and more clients are locked up at locations further away from their attorneys. The physical distances involved make face-to-face communication more challenging, especially when combined with the caseload demands on our staff. At the same time we've seen an increase in use of video for court proceedings. The biggest push for video use in court has been in bail hearings and other proceedings in which the defendant is incarcerated. These hearings also pre-sent a challenge for us. For example, it is hard to speak privately with the client if the defense attorney is in the courtroom and the client is on a video screen.

Perhaps the biggest change is reflected in the sheer numbers of cases coming through the door of the SPD. In the year I started, I believe we opened just over 76,000 cases. Compare that to our case openings of over 136,000 in the last fiscal year. These are substantial changes not only to our practice, but to others in the justice system - especially if you factor in the harsher penalties that are in existence now versus 20 years ago.

Kraft: What about changes or trends with the attorneys themselves?

Randy Kraft is communications director of the Wisconsin State Public Defender's Office

Chiarkas: We're starting to see more retirements of our "lifers," the attorneys who have served since the agency's inception back in the late 1970s. With each retirement, we lose a substantial body of knowledge. And at the same time, it's harder financially for younger attorneys to enter and remain in public service. We used to have a salary structure that provided competitive salary increases, called regrades, in the first few years of service. But the increases have been much lower in the last decade, and retention is a struggle. It's an even greater economic reality for our private bar. Many private attorneys can't afford to take our cases, at least not regularly.

Kraft: Let's look at the SPD's Office from an organizational perspective. What philosophies do you bring to your job?

Chiarkas: The agency owes much of its success to the fact that we work as a team. There isn't one person in the agency who's more important than another person in the agency. We're in this together; we're all equals working for the client. The most important person in this agency is the client.

Kraft: Organizationally, the SPD's Office is both a state agency and a law firm. Does this arrangement create any complications or tension?

Chiarkas: I don't think that these roles create problems within the agency. But there are tensions on certain issues from moment to moment. For example, a couple of years ago the Department of Administration wanted to consolidate our computers with the rest of the state. We explained that while we are a state agency and understood that the DOA wanted to consolidate all of the computers in the state, we are also a law firm with confidential client information. And in the end the DOA understood that issue, and we maintained control over our own computers.

Kraft: Wisconsin's indigent defense program is marked by a statewide government agency using both staff and private attorneys to provide legal representation. How does this model, Wisconsin's model, compare to the other structures that you've seen?

Chiarkas: We have the best possible structure. But, that doesn't mean there isn't room for improvement; for example, we must increase our private bar pay and update our financial eligibility guidelines. As a statewide system, we have our information centralized. If something like a pandemic happened or some other disaster occurred, having a statewide system gives you a bank of information that you don't otherwise have.

Another thing about a statewide system is that it's more flexible. If suddenly there is less crime in Milwaukee, and there's more crime in Green Bay, we can transfer people from one office to another. So it allows the reallocation of resources wherever they are needed.

It's also the most cost-effective option because you have only one infrastructure that's running the whole program. You don't have to duplicate, for example, the payroll or personnel function from county to county to county. You only need one centralized function. It's cost effective, it's taking care of the clients, it's tracking information, and it's more flexible. And it allows us to offer uniformity in terms of our practice and policies.

Kraft: You've seen the agency through some challenging times. What do you feel were the major challenges that the agency has faced during the past 20 years?

Chiarkas: When we were told to fire 50 attorneys back in 2001 - that certainly was a challenge. We were successful in contesting that order, not only because it was just plain wrong to do that to peoples' lives, but it would actually have cost taxpayers twice as much for those cases to go to the private bar than to keep those 50 attorneys in place.

We're also facing huge challenges today. Many poor people in this state do not qualify for our representation. Our eligibility standards have not been adjusted since the 1980s, and therefore a lot of people that are too poor to afford counsel cannot be represented by the SPD's Office. They're instead represented at county expense, which is considerably more expensive than if we - the state - represented them.

The rate at which we're allowed to pay our private bar is another problem. When we appoint a private attorney, we are only able to pay $40 per hour. These are mostly small business owners, and that amount doesn't even cover their basic overhead expenses.

Wisconsin also leads the nation in disproportionate minority contact and confinement, and we should be embarrassed by this record. Wisconsin has the reputation of being a progressive state with a strong sense of right and wrong and justice. This is a different Wisconsin, and we ought to face this problem and correct it immediately.

It's time to reevaluate truth-in-sentencing. Since truth-in-sentencing was enacted, prison, probation, and parole populations have almost doubled, and they are growing exponentially. It's time to stop it, fix it, and get it right.

There were other challenges along the way. We faced an audit in the 1990s that resulted in an increase in caseloads at the same time penalties were increasing. Caseloads were too high before the audit; nevertheless, they were raised. The message was that the least-favored citizens of this state, the poor, would get overworked public defenders and an underpaid private bar.

At the same time, prison spending was increased, and there was a draconian rewrite of the juvenile code. In Wisconsin, a 10 year old can be punished as an adult. And, for purposes of punishment, we also started calling 17 year olds "adults." It was a terrible moment in the history of justice and children in Wisconsin.

But our staff worked harder, representing children and adults just as well as they ever have. This agency has a hard-working and absolutely dedicated staff.

Kraft: During the past 20 years, treatment courts and diversion opportunities have become more prevalent in Wisconsin. What role do you feel they should have in our justice system?

Chiarkas: I think they're the right direction, and their expansion is a good sign. People who scare us - violent, dangerous people - should be removed from society. But for people who have a drinking problem or a drug problem or whatever else the problem is, we should find and require treatment, correct behavior, and keep them in society. Why? Because it's more effective and it's less expensive. It's smart on crime and it should be the foundation of Wisconsin's long-term solution.

Kraft: The possibility of reinstating the death penalty in Wisconsin came up a few years back. In fact, Wisconsin voters were faced with an advisory referendum on the issue. What role should the death penalty play in our justice system?

Chiarkas: None at all. It's very expensive, and too often an innocent person is executed. The only thing that it does satisfy is our dark urge for vengeance. We need to check that feeling and then with reason and common sense decide what's the smartest thing to do. Life without parole is just as secure as, and less expensive than, the death penalty.

Kraft: During the last Wisconsin Supreme Court justice campaign, comments were expressed about public defenders that many felt were negative. What was your reaction to these comments?

Chiarkas: I think it was startling. For a sitting judge in America to state he is on the side of law enforcement and to suggest that he holds public defenders in low esteem is simply startling to me. It's in sharp contrast to everything our American justice system stands for. And in light of the racial disparity problem we're facing in Wisconsin, it was offensive that a sitting judge would run ads that showed his black judicial opponent alongside a black defendant while a background audio stream suggested that this particular judicial candidate supports crime and criminals because he was a public defender. It was a sad moment for justice in Wisconsin.

Kraft: We've been talking about the criminal side of the law; let's talk about the civil side for a moment. The recent Access to Justice Initiative Report, for instance, focused on this issue. How do you view this holistic approach?

Chiarkas: It's extremely important. I think one of the big mistakes the legal profession made was to separate criminal and civil law. Most people have problems that go well beyond just the criminal act. For example, a mother who steals bread from a grocery store to feed her children who are sleeping under a cardboard box in the alley needs a lot more assistance than just a public defender to represent her on a theft charge. If you provide poor people with holistic treatment, you will also find that you will change their criminal behavior as well.

Kraft: Earlier you mentioned your travels to foreign locations, such as Israel, Gaza, Japan, Germany, and so on. What have you learned from these experiences?

Chiarkas: That in every community, the idea of representing poor people accused of crimes is both laudable and embraced. But at the same time, there is a reluctance to spend resources on it, whether it's in Israel or in Gaza or in Japan. And because of cultural differences you cannot, and ought not, impose an American ideal in another country. You have to listen to what the culture says, and you must tailor the right to counsel and the rule of law to fit the particular culture.

Kraft: In recent years, you've been called on in greater frequency to work with indigent defense programs within the United States such as in Michigan, Ohio, and Louisiana. How do your experiences with other states compare to your experiences abroad?

Chiarkas: No matter the culture, it really comes down to the same thing. Whether we're talking about New Orleans, Milwaukee, Tokyo, or Tel Aviv, there are poor people. There are those who want them to be treated fairly and justly, just like anybody else, when they're accused of a crime. You find it in different cultures with different names and different people, but it's really the same. Justice depends on fairness and on the process of determining guilt, not on the punishment. It is the justice process, not the punishment, that distinguishes just governments; this is not a technicality, this is the essence of what we are.

Kraft: Is there anything else you'd like to add?

Chiarkas: My tremendous pride, although it may sound corny, to be a colleague of these wonderful people as a part of the State Public Defender agency. The secretaries, the client service specialists, investigators, attorneys, all of them. My sense of pride in working with these world-class heroes - who endure defamation for their commitment to stand and support our Pledge of Allegiance, our Constitution, our least-favored citizens. To slow down the wheels of justice to ensure we get it right - to prevent the state, as best we can, from imprisoning more innocent people than it otherwise would. It makes me very proud to simply be one of the employees of this great agency who are defined not by what they receive for their dedication and hard work but rather by what they become because of it.

Wisconsin Lawyer