Indigent Defense and the Private Bar Rate Debate

The Wisconsin State Public Defender (SPD) currently pays $40 per hour to private bar attorneys who represent indigent citizens accused of crimes.  This rate has been unchanged for decades, and lawyers are lobbying for an increase.  However, aside from horrible timing—this latest plea for more money coincides with Wisconsin’s $2.5 billion budget deficit—some of the arguments in support of the rate increase aren’t terribly persuasive, and should be abandoned.  But more significantly, the fact that lawyers have to make these arguments in the first place is merely a symptom of a larger problem: We live in a culture that misunderstands and undervalues our Constitutional rights.

But first, let’s review and grade a few of the more popular arguments:

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Criminal Court: Guilty by the Preponderance of the Evidence?

One of our fundamental beliefs is that before a jury may convict a person of a crime, it must be satisfied of guilt beyond a reasonable doubt.  However, upon even minimal scrutiny, this belief starts to crumble.  For example, Wisconsin criminal jury instruction number 140 concludes with the following two sentences: “While it is your duty to give the defendant the benefit of every reasonable doubt, you are not to search for doubt.  You are to search for the truth.”

This instruction is problematic for several reasons.  First, it invites — in fact, instructs — the jury to disregard the evidence and instead speculate on, or “search for,” what it believes to be “the truth.”  This capitalizes on the human tendency to think we can know things without evidence.  How often have you heard someone say, for example, “I know it, I just can’t prove it”?  The jury instruction only emboldens that kind of sloppy thinking, and at the worst possible time with much at stake.

Second, this concept of truth-seeking is actually misplaced.

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Study Reveals Illegal Racial Discrimination in Jury Selection

Last month, the Equal Justice Initiative (EJI) released a study, “Illegal Racial Discrimination in Jury Selection: A Continuing Legacy,” which revealed a prevalence of racial bias in jury selection in the South.  The report stands as the most comprehensive study of racial discrimination in jury selection since 1986, when the US Supreme Court sought to limit the practice in the landmark case Batson v. Kentucky.

Racial discrimination in jury selection first became illegal when Congress passed the Civil Rights Act of 1875.  Despite federal legislation, people of color continue to be excluded from jury service because of their race, especially in serious criminal trials and death penalty cases.

Evidence suggests the phenomenon persists through the use of peremptory challenges.  A peremptory challenge essentially provides attorneys the ability to exclude a certain number of potential jurors without explanation of their removal.

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