Just a little more than 50 years ago, the U.S. Supreme Court decided the landmark case of Gideon v. Wainwright. In this case, the Supreme Court brought to fruition the Sixth Amendment’s guarantee of a criminal defendant’s right to counsel in state court, even if the defendant has limited financial means and thus cannot afford one. If a defendant is indigent, the state must then appoint counsel for that defendant. Although indigent defendants are guaranteed court or state appointed counsel by the Sixth Amendment, Wisconsin has not lived up to the letter or spirit of the Supreme Court’s decision in Gideon. It is imperative Wisconsin substantially improves its criminal indigent defense system.

Justice Learned Hand once famously said, “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.” Unfortunately, Wisconsin has been doing just that. Although the Sixth Amendment guarantees the right to appointed counsel in criminal proceedings for those who are deemed indigent, it is left mainly up to individual states to determine what exactly constitutes indigence.

Compared to the rest of the nation, Wisconsin has one of the more restrictive definitions of indigence. Currently, Wisconsin defines a person as indigent if his or her income is 115 percent of the federal poverty guideline or less.  But before 2010, the Wisconsin income bracket used to determine indigence was even more restrictive: a person who made less than the federal poverty guidelines was not necessarily considered indigent. As a matter of fact, according to the National Legal Aid & Defender Association, a defendant in Wisconsin who made more than $3,250 per year pre-2010 was not eligible for state appointed counsel in criminal proceedings. 

Wisconsin needs to redefine what constitutes indigence in regards to annual income. Some states, such as Louisiana, define a defendant as indigent if his or her income is 200 percent of the federal poverty guidelines or less. Personally, I think Wisconsin should define a defendant as indigent if his or her income is 250 percent of the federal poverty guidelines or less. It is better to err on the side of over-inclusiveness in contrast to being under-inclusive when dealing with a person’s fundamental right to counsel in criminal proceedings.

Wisconsin must do more than just redefine when a defendant is considered indigent; Wisconsin must also do a better job of funding those who represent indigent defendants. Gov. Scott Walker has pushed for more funding to assistant public defenders in his most recent budget proposal. For this, I applaud him. Yet, as far as I know, he has not pushed for an increase in the amount of money that the Wisconsin Public Defender’s Office can pay to private attorneys who take criminal indigent cases. After all, the PDO does not have enough resources from the state to take every indigent case, and even if it did, it still would have to decline some cases because of conflicts of interest between its various legal clients.

Currently, the PDO only pays private attorneys $40 per hour to represent indigent defendants. According to the National Association of Criminal Defense Lawyers, Wisconsin’s hourly rate for private attorneys who represent indigent defendants is the lowest in the nation. This low rate of compensation seriously harms the rights of indigent defendants. As the Florida Supreme Court wrote in White v. Bd. of County Com’rs of Pinellas County, “The relationship between an attorney’s compensation and the quality of his or her representation cannot be ignored. It may be difficult for an attorney to disregard that he or she may not be reasonably compensated for the legal services provided.” If Wisconsin wants to uphold the letter and spirit of Gideon, it must increase the amount of compensation private attorneys receive when representing indigent defendants.

Some may ask how the state can pay for the policies I am advocating. It’s pretty simple: don’t fully fund Walker’s proposed income tax plan. His plan will cost the state $343 million. According to the Legislative Fiscal Bureau, almost half of these tax cuts will go to those earning more than $100,000 annually. If Wisconsin only funded his proposed tax cuts on annual incomes of $100,000 or less, the state would have an extra $171.5 million to spend on the policies I’ve mentioned. I think $171.5 million is more than enough to implement these much needed policies on a long-term basis.

Although Gideon held that an indigent defendant was guaranteed court or state appointed counsel more than 50 years ago, its promise has largely been unfulfilled. In order to uphold the letter and spirit of the Gideon decision, Wisconsin must substantially improve its criminal indigent defense system in the near future.

Aaron Loudenslager ([email protected]) is a first year law student.