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Justice Without Partisan Boundaries
2001 Assembly Bill 536 restores a bipartisan plan to adequately fund the
Office of the State Public Defender, thus preventing a tax shift from the
state to the local level in paying for indigent representation.
by Sheryl K. Albers & Brian B. Burke
OUR CRIMINAL JUSTICE SYSTEM rests on five very important foundations:
law enforcement personnel, prosecutors, defense attorneys, judges, and
prisons. When we unduly burden one or more of these foundations, we fail
in our responsibility to maintain a fair and just process.
While we need to carefully review funding in all areas of our justice
system, indigent representation remains our most pressing concern. In
1963 the U.S. Supreme Court determined that the Sixth Amendment to the
U.S. Constitution grants every citizen the right to legal representation
in a court of law when accused of a felony, even if the citizen cannot
afford an attorney. In Gideon v. Wainwright,1 the Supreme
Court enunciated that "reason and reflection" required the Court "to recognize
that, in our adversary system of criminal justice, any person haled into
court, who is too poor to hire a lawyer, cannot be assured a fair trial
unless counsel is provided for him." The Gideon decision laid the groundwork
for subsequent U.S. Supreme Court decisions expanding the right to counsel
to also include misdemeanor cases.
States decide how they will fulfill the constitutional duty to provide
counsel to the poor. Wisconsin does so in three ways: attorneys in the
Office of the State Public Defender (SPD); private bar attorneys contracted
at $40 per hour with the SPD; and private bar attorneys appointed by local
judges, usually paid at the $70 per hour rate specified by Wisconsin Supreme
Court rule. SPD representation and SPD contract attorneys not only provide
the least expensive method of providing representation, but also the funding
for both derives from general purpose revenue (income and sales tax revenues).
On the other hand, private bar attorneys appointed by local judges are
paid from county funds - at property taxpayer expense.
Federal and state case law does not delineate exactly what fixed income
level constitutes indigency. However, most courts will appoint counsel
for someone at or below the federal poverty level. Section 977.07(2) of
the Wisconsin Statutes establishes criteria for obtaining counsel through
the SPD. However, even those guidelines do not resolve the appointment
of counsel question before local judges. In 1991 the Wisconsin Supreme
Court held, in State v. Dean,2 that such criteria cannot
serve to deny counsel to an otherwise-indigent individual:
"The court should consider all relevant evidence presented by the defendant
that is material to the defendant's present ability to retain counsel.
The trial court must disregard the public defender's established cost
of retained counsel ... and consider the fees charged by local private counsel
in similar cases. The review at this stage will ultimately involve examining
on a case-by-case basis, factors and circumstances that the legislature
is ill equipped to consider."
Wisconsin's SPD standards fall well below the federal poverty standard;
thus, state taxpayers do not foot the bill for anyone who would not otherwise
receive representation under the U.S. Constitution.
Gov. McCallum originally cut nearly 5 percent from the SPD budget -
the largest cut of any state agency. To manage these cuts, the SPD estimated
it would need to lay off one out of every seven assistant public defenders.
Members of both parties on the Joint Committee on Finance found this possibility
unacceptable, and we successfully developed a bipartisan plan that realized
cost savings, while maintaining our constitutional duties. In order to
reduce overall costs, the plan included hiring 60 new state attorneys
and establishing a new state office to handle conflicts cases. We support
raising the hourly contract rate to a more reasonable amount; however,
that was not possible due to revenue shortfalls. The committee unanimously
approved the plan, and it remained unchanged until it reached the governor's
desk.
Unfortunately, Gov. McCallum used his veto pen to once again cut the
SPD budget and its attendant positions. However, due to legislative repositioning
of funds during the budget process, the problem shifted from having to
lay off state-employed attorneys to not having enough money to contract
with needed private bar attorneys. In the end, the overall cut to the
SPD currently stands at more than 8 percent of its base budget, a devastating
blow to an agency that recently received a Forward Wisconsin award for
efficient management.
SPD attorneys currently operate with statutory caseloads 23 percent
higher than national standards. Demanding that they represent more clients
would jeopardize their ethical responsibility to provide effective counsel.
In addition, with the private bar appropriation decimated, the SPD expects
to run out of contract money by June 30, 2002 - the end of the first year
of the biennium. When that occurs, the SPD will have no choice but to
advise private bar attorneys asked to take cases beginning on July 1,
2002, that they will not receive payment for their work until July of
2003. The SPD presently reports difficulty contracting with private bar
attorneys, given the low statutory contract rate of $40 per hour. The
prospect of a 12-month payment delay undoubtedly will result in few private
bar attorneys willing to take SPD appointments after June 30, 2002.
When this anticipated scenario occurs, the burden will rest upon circuit
court judges to appoint attorneys to handle cases. If all judges were
to appoint attorneys at the minimal Wisconsin Supreme Court rate of $70
per hour (and some counties already pay more), it could cost property
taxpayers as much as $33,250,000 for one year of representation, based
on current county caseloads. For example, the SPD estimates the veto will
cost Milwaukee County up to $11,037,322; Brown County could experience
$1,597,651 in new legal service fees. Of course, caseloads also could
increase in the next two years, creating an even bigger fiscal problem.
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Rep.
Sheryl K. Albers, attends the U.W. Law School. Elected to the
Assembly in 1991, she currently serves as a ranking member of the
Joint Committee on Finance.
Sen.
Brian B. Burke, Georgetown 1981, is a former Milwaukee County
assistant district attorney. Elected to the Senate in 1988, he currently
serves as Senate chair of the Joint Committee on Finance.
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The indigent will receive representation. To restore the fiscally responsible
bipartisan plan, the Wisconsin Legislature must allocate $3,267,900 to
the SPD. If the legislature does not act, attorney bills totaling up to
$33,250,000 will hit the doors of county courthouses next fall. To prevent
this tax shift from the state to the local level, we joined with 50 Assembly
and 20 Senate colleagues to introduce 2001 Assembly Bill 536. However,
we need members of the legal profession to collectively request expedient
action on our legislation before next June, and we encourage members of
the State Bar to contact their legislators to ask for their support of
this important legislation.
Wisconsin maintains a world-renowned public representation system, led
by Dan Berkos, chair of the Public Defender Board. The SPD consistently
receives state, national, and international accolades for providing effective
and efficient criminal defense services to the indigent. In fact, Nicholas
Chiarkas, our state public defender, founded Justice Without Borders,
an international organization to improve criminal justice systems worldwide.
We understand that a well-balanced legal system creates a more stable
and safe society. In Wisconsin, the Office of the State Public Defender
is a foundation of our legal system that deserves protection through bipartisan
policies reflecting sound economic judgment and an understanding of our
constitutional duties. Justice, after all, knows no partisan boundaries.
Endnotes
1 Gideon v. Wainwright, 372 U.S. 335 (1963).
2 State v. Dean, 163 Wis. 2d 503 (1991).
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