I write to explain why a pay increase for private attorneys who accept State Public Defender case appointments is important for all of us. As an attorney with the SPD’s Appellate Division, it is my honor to be able to go to work every day to defend not only my clients, but also the Constitution.
I am also an Adjunct Professor at the University of Wisconsin Law School (and a proud alum myself). Through my work with law students in the Criminal Appeals Project, I both represent clients and train future lawyers on how to represent our clients in criminal appeals.
Unsurprisingly, our adherence to the Bill of Rights often faces its greatest tests when applied to people charged with (and, in the appellate world, convicted of) crimes.
The SPD provides an essential service — it meets Wisconsin’s constitutional obligation to provide legal representation to the poor facing criminal charges. This is no small task. In a typical year, the SPD provides representation in upwards of 130,000 cases. We provide this representation using a combination of staff attorneys and, in conflict and overflow cases, private attorneys certified to take our case appointments. About 370 staff attorneys handle about 60 percent of the cases. The other 40 percent are appointed out to certified private attorneys.
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The pay rate in question is the amount the State reimburses the certified private attorneys. While fiscal considerations are always important, Wisconsin’s reimbursement rate is the lowest in the nation at $40 an hour. The SPD has requested an increase in the rate in each budget over the last 22 years without success. Because the SPD is a state agency, the SPD cannot raise this rate on its own.
There were several attempts at legislation outside the budget process. Another measure gaining momentum as I write this is a pilot loan assistance program for those who accept SPD appointments in our rural counties. While this is not a replacement for raising the rate, it is at least a realistic possibility at a potentially beneficial program. And lastly, outside parties have filed a petition with the Wisconsin Supreme Court regarding the rate of pay. This petition is currently scheduled for review in May. Any resulting rulings from the petition may have a favorable impact on the rate as well.
Importantly, the $40 an hour rate is not how much profit attorneys make. This rate must cover the costs of representation and pay. That is, from the $40 an hour rate the attorney must cover overhead and pay. Several studies have shown that the cost alone to run a solo or small criminal defense law firm is a minimum of $42 to $43 per hour.
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The impact of this low pay rate especially effects our rural communities throughout the State. It is difficult to find attorneys willing to represent clients in rural counties. The low reimbursement rate makes it even more challenging. As an example, our Ashland SPD office, which covers cases arising in Ashland, Bayfield and Iron Counties, needs to make on average 39 contacts over 24 days to find an attorney willing to take one case.
Without willing defense attorneys able to provide effective representation, all of our constitutional rights become jeopardized. Under Wisconsin law, if an attorney fails to raise a constitutional challenge in the circuit court, to address it on appeal becomes difficult for that constitutional violation. When a constitutional violation goes unaddressed, it becomes more likely that the next person’s rights will be violated. It, therefore, benefits all of us to ensure that assigned counsel defense attorneys in Wisconsin have the resources necessary to effectively represent their clients.
Hannah Schieber Jurss ([email protected]), is an Adjunct Professor teaching the Criminal Appeals Project and an attorney with the Appellate Division of the Public Defender’s Office.