Strong Week for the Wisconsin Criminal Law System

3L Ron Tusler forwards an important bit of news regarding the Wisconsin criminal justice system:

Governor Doyle recognized on Monday that Wisconsin needs to do more to comply with the Sixth and Fourteenth Amendment.  The Sixth Amendment requires that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”  Gideon v. Wainwright applied the Sixth Amendment to the states as a fundamental due process right.  372 U.S. 335 (1963).  The Gideon Court did not define indigency and the states are free to define it as they will.

Until Governor Doyle signed Senate Bill 263 into law, Wisconsin held an extremely low income threshold set in 1987.  As a student practitioner at the Outagamie County Public Defender’s Office last summer, the state required me to turn down individuals with less than $100 income per month.  Imagine telling someone with so little income that they were too wealthy for help.  That is a message many public defenders must deliver every day.  Imagine how many go on to inadequately represent themselves pro se.  Is that Constitutional?  I doubt the Gideon Court would approve. 

I applaud Wisconsin for raising the threshold to the current W-2 limits, which are roughly 115% the federal poverty level.  In my limited experience, most criminal law attorneys strongly feel that Wisconsin is failing to fund its criminal law duties sufficiently. The state is finally stepping up to the plate.  The Joint Finance Committee approved an additional $700,000 to be divvyed up into the salaries of Wisconsin district attorneys.  If passed, Senate Bill 224 will raise the private court-appointed attorney rate from $40 to $70. 

May Wisconsin continue on this fine path of adequate funding to protect the public from guilty criminals.

I, too, am pleased with these developments.  Wisconsin has for many years been among the stingiest states in the nation in providing for indigent defense.  Quite apart from the ethical problems, it is not even clear this is a fiscally responsible strategy, as poor public defense can lead to lengthy (and expensive) terms of incarceration for defendants who are innocent or who otherwise do not require imprisonment.

This Post Has 2 Comments

  1. Nick Zales

    While this is an improvement, it still leaves DAs vastly over-funded compared to those who do private public defender work in this case. Last year the State Public Defenders office received 142,000 requests and gave half of them to private practice attorneys. While funding for DAs – who have a union to bargain for them – is assured, the chances of the private rate being increased is ZERO. Private practice attorneys have no union and are barred by law from having one.

    Justice demands a battle of equals in the courtroom. As long as our private practice attorneys make pennies compared to DAs, we will not have justice. What we have are career DAs, who work in the same courtroom day after day, up against neophytes and those who struggle to make a living. SB 224 has no chance of passing.

  2. Liz Nevitt

    I agree that, at $40 per hour, Wisconsin is not making adequate defense available to our low-income citizens. I had no idea that the income threshold was so “high” as to exclude PD representation for someone earning over $100 per month!!! That is embarrassing! I think that PD’s, as well as Guardians ad Litem (who serve the interests of children in Wisconsin) should be compensated at a rate higher than even $70 per hour. I’m not aware of many offices that can actually meet expenses at that rate. If it were $100 per hour (still about half of what most private attorneys charge), we could get more good lawyers to take PD or GAL appointments and would be able to really help those we are appointed to serve.

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