Eight named plaintiffs filed a class action lawsuit against Gov. Tony Evers and Wisconsin’s Public Defender Board Aug. 23 over a lack of legal representation for low-income defendants in criminal cases. The plaintiffs have been waiting in custody for extended periods of time because they cannot afford private attorneys but have yet to be assigned a public defender.
Four litigation groups, including the Wisconsin Association of Criminal Defense Lawyers, filed the suit, asking the state to immediately appoint legal counsel to those in need or dismiss the criminal charges against them.
The lawsuit cites the statewide backlog of 35,000 criminal cases as a reason for prompt action. With such a large number of pending cases, defendants who should be presumed innocent under Fifth Amendment due process protections could spend months or longer in custody.
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Delays in criminal trials are often the result of public defender shortages. The issue stems from multiple causes, all of which are complicating factors in the right to receive legal representation.
Adam Plotkin is the legislative liaison at the Wisconsin State Public Defender’s Office. He said the shortage comes down to two main factors — workload and compensation.
Plotkin said pay is very low compared to the amount of work publicly appointed attorneys are expected to complete. Over the past five to 10 years, this imbalance has increased as the practice of law has changed and technologies such as video evidence have emerged.
Private attorneys are able to curate a manageable workload for themselves. But with four out of five criminal defendants unable to afford counsel, manageable workloads are a luxury for the backlogged public defender system.
The issue of insufficient pay has been partially addressed in the past. In March 2021, Gov. Evers signed a bill that allows for merit-based pay increases for public defenders in the state. Intended to incentivize experienced attorneys to stay in the public sector, the bipartisan measure was a hopeful effort to resolve the shortage.
But the crisis has persisted despite salary increases. Attorneys continue to gravitate toward the private sector for other benefits, such as health insurance and childcare plans.
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The COVID-19 pandemic has only exacerbated the crisis. Shutdowns delayed court processes, which overloaded many employees to the point of resignation. Because criminal cases in particular require more time and resources, the public defender system cannot keep up with the demands amid nationwide labor shortages.
Evidently, this backlog creates significant challenges in granting due process rights to criminal defendants who can’t afford a private attorney. But like other aspects of the criminal justice system, these conditions do not impact all Wisconsinites equally.
“There are significant racial disparities in the criminal and legal system, and so we see that reflected in our clientele,” Plotkin said. “A disproportionate number of people of color who are charged with crimes qualify for a public defender.”
Compounded instances of inequity in the justice system make the impacts even more pervasive for low-income defendants. Plotkin cited cash bail as another example of how socioeconomic status plays a role in one’s experience as a criminal defendant.
Though, on paper, bail gives criminally charged defendants an opportunity to be released from detention, many people without the financial means to post bail have no choice but to remain in custody. Plotkin said this is a major flaw within the criminal justice system because the presumption of innocence is not applied equally across all socioeconomic backgrounds.
“A big fallacy of cash bail is it somehow protects public safety,” Plotkin said. “But under the cash bail system, if I’m charged with the same crime as you are, but you have [financial] means and I don’t … what makes you less risky than me?”
A similar principle holds true in the public defense sector, as indigent defendants may have to wait months before standing trial. Criminal defendants who have the means to hire private counsel immediately undergo a much more prompt definition of Sixth Amendment speedy trial rights.
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Ultimately, while policies may not explicitly enforce discrimination, prejudice against low-income people persists, which fundamentally influences their experiences as they move through the criminal justice system.
The inequity of public defense brings to light a larger flaw of law enforcement — the justice system lacks the capacity to address the issues it creates. In other words, the state is handing out criminal charges faster than it can resolve them, and the due process rights of low-income defendants are suffering as a result.
The class action lawsuit is not intended to figure out how to repair this broken system, according to WACDL attorney Hank Schultz. Instead, the plaintiffs in the suit want to place the responsibility on the government to balance the criminal charges they issue with their ability to resolve them.
In fact, the lawsuit on its own represents a technical solution to a structural problem. WACDL attorney John Birdsall emphasized the responsibility of the government to solve the crisis.
“This lawsuit hopefully is a wake-up call to build a system that actually operates and actually functions fairly for everybody involved,” Birdsall said in an interview with Wisconsin Public Radio.
Should the plaintiffs win the class action lawsuit, the state must consider its course of action. They would need to derive the resources to appoint legal counsel in the long-term future or handle the consequences of dropping criminal charges — potentially leaving the victims of crimes without justice.
Sufficient appointment of counsel would require coordinated initiatives on the parts of the Wisconsin State Public Defenders and other government entities. Many of the current efforts led by the Public Defender’s Office work to bolster support around the attorneys in the midst of the shortage. This comes in the form of paralegal and temporary staff assistance to reduce the workload placed on public defenders.
The Wisconsin State Public Defender’s Office will submit its budget request for the next biennium Sept. 15. Plotkin said this will be a considerable request intended to address recruitment and retention issues, increase pay, hire support staff and otherwise mitigate the crisis.
“[These measures] are all geared toward that singular effort of making sure we have enough resources to appoint counsel to every person who qualifies,” Plotkin said. “If approved, the new budget could bring Wisconsin’s public defense system the support it needs to better serve low-income defendants.”
Clearly, the State Public Defender’s Office is acutely aware of the issue and uses the resources it has to implement meaningful change. But ultimately, being granted the support they need to resolve the public defender crisis requires integrated efforts across many government sectors. Understanding the backlog as an impact of income-based prejudice is critical for addressing the issue at its root.
Of course, more basic resources are required to support an essential — though grossly overworked — group of public servants. Entirely solving the public defender crisis, however, also demands a nationwide reckoning of the socioeconomic disparities inherent in a deeply flawed justice system.
Celia Hiorns ([email protected]) is a sophomore studying journalism and political science.
