High court urged to raise appointed lawyer pay

Rate is lowest in nation, undermining clients’ right to representation

The nation is watching Wisconsin’s Supreme Court to see how it addresses the state’s problem of underfunded criminal defense, a Washington, D.C., lawyer told the court Wednesday.

“The Sixth Amendment right to counsel is different from all of our other fundamental rights — it’s not self-actuating,” Norman Reimer told the justices.

“The Sixth Amendment right is nothing if it’s not funded. It withers and it dies. And it’s withering here in Wisconsin.”

Reimer is executive director of the National Association of Criminal Defense Lawyers. He was one of 19 lawyers, judges, and county and state officials who spoke at a 21⁄2-hour public hearing about a petition to pay appointed lawyers $100 an hour.

The current $40 rate — the lowest in the nation and unchanged since 1995 — doesn’t cover overhead costs for most experienced lawyers.

Fewer and fewer will accept cases from the State Public Defender when that office must farm out clients it can’t take because of conflict or staffing limits, about 40% of qualifying defendants.

As a result, many defendants go weeks without a lawyer, and the few lawyers willing to take the appointments wind up driving thousands of miles over several counties to represent clients, an arrangement not conducive to effective representation.

The justices agreed the $40 rate is low. Justice Daniel Kelly called it abysmal — dog groomers earn more, he said — and wondered if $100 was adequate.

But he was also the most skeptical about how the court might change it without invading the province of the Legislature.

“That’s a major thing, for us, to assert power of the purse,” Kelly said. “It’s not a question of leadership, it’s a question of power.”

Henry Schultz, one of the petition’s co-authors, said it would be a modest step for the court to change its own rule, setting the minimum payment of court-appointed lawyers at $100.

That applies when the Public Defender can’t secure a private attorney, and for lawyers who represent children’s interests in family court, or people facing involuntary civil commitment for mental treatment. That rate is currently $70.

Indirectly, Schultz said, that might pressure counties — who pay for such appointments — to lobby the Legislature to raise the statutory $40 rate the Public Defender pays.

John Birdsall, Schultz’s co-author, told the justices that it’s the entire state’s duty to comply with the U.S. Supreme Court mandate to provide effective counsel to poor defendants.

“Let’s say that’s true,” Kelly said. “Each branch has responsibility. But just because one fails doesn’t mean the other can pick up the mantle.”

Birdsall and others argued that it is part of the court’s implicit authority to ensure the justice system functions fairly, even when it costs money.

When so many defendants have no representation or wait weeks to get a poorly prepared lawyer, the system malfunctions, they argued, with impact not just for the defendant, but for victims, jails and all other parts of the system.

Raising the Public Defender appointment rate from $40 to $100 an hour would cost about $32 million.

Timothy Andringa, a Waukesha lawyer, noted he’s getting a $200 tax rebate for having two children, something Gov. Scott Walker authorized from the state’s $400 million budget surplus. “The money’s there. I paid it. You paid it.”

Chief Justice Patience Roggensack did not indicate when the court might announce what, if any, action it will take regarding the petition.