Court-appointed lawyers in Wisconsin are getting a raise in an order meant to address a chronic lack of attorneys willing to take on public defense cases.
In May, the Wisconsin Supreme Court ordered that private attorneys assigned to defend cases must be paid $100 an hour—up from $70—beginning in 2020. While defense lawyers welcome the higher rate they say it may not reach far enough, as the court declined to declare lower rates unreasonable.
The Wisconsin Public Defender’s Office assigns about 40 percent of its cases to private attorneys, but it also pays the lowest rate in the nation, only $40 an hour—lowered from $50 in 1995, according to NPR.
The state struggles to find lawyers at this rate, which results in criminal defendants remaining in in jail for months despite the U.S. Constitution’s guarantee of a speedy trial.
“If our legislature fails to act, we will see the deepening of this constitutional crisis and a collapse of the system itself,” lawyers John Birdsall and Hank Schultz wrote in a statement for the Wisconsin Association of Criminal Defense Lawyers, which petitioned the court.
“The cost to reconstruct after that forgone occurrence will be astronomical—compared to the meager price of simply paying lawyers a minimally reasonable hourly rate,” they continued.
The court also refused the association’s petition to index the new rate to inflation and prohibit flat-fee contracts. Justice Daniel Kelly and Justice Rebecca Bradley wrote a dissenting opinion, stating that while the current compensation is “absurdly inadequate,” the court shouldn’t trespass on “authority that belongs to others,” meaning the Wisconsin lawmakers.
In what seems like a warning to the legislature, the order not only lays out the summary of the problem it responds to but also recounts how other states have had to address the same issues following expensive class action litigation.
Ultimately, the problem isn’t just in finding lawyers to take public defense cases but in getting them to focus their energy when they do.
“If you have a financial conflict that you’re going to lose more money the more you work on a case, it’s going to have a tendency to try to get the lawyer to get the person to plead quicker,” said David Carroll, with the Boston Based Sixth Amendment Center.
According to a 2015 survey of Wisconsin criminal defense lawyers, they do in fact spend less time with public defense clients than with private clients. About half of those surveyed are taking fewer public defense cases than in years past.