Frederica Freyberg:

In our first look tonight, Wisconsin pays appointed public defenders the lowest rate in the nation, at $40 an hour. This week, attorneys and judges across the state told the Wisconsin Supreme Court the low pay has created a constitutional crisis. In some cases indigent defendants are sitting in jail because there’s no one to represent them. The sixth amendment to the U.S. constitution requires the right to counsel in all criminal prosecutions. Lawyers petitioned the court to raise the rate for court-appointed lawyers to $100 an hour, hoping to match that rate for private attorneys doing public defender work. After the hearing the high court approved raising the rate to court-appointed lawyers to $100 per hour. One of the co-authors of the petition, Milwaukee attorney John Birdsall, told the justices it is within their authority to “save the system.” He joins us from Milwaukee and thanks for doing so.

John Birdsall:

Thank you.

Frederica Freyberg:

So what’s your reaction to the fact that the court did decide to raise the rate for court-appointed attorneys?

John Birdsall:

Well, it’s a partial victory. It wasn’t everything we asked for. We asked specifically for that, but in addition we wanted the court to make a finding that anything below that $100 rate for the Supreme Court rule would be unreasonable and specifically addressing the statutory rate that the public defender’s office is required to pay attorneys, which is $40 an hour.

Frederica Freyberg:

Why is that statutory rate so low?

John Birdsall:

Well, it was set in 1977, when they created the agency, the public defender agency, and they moved it from the supreme court over to the executive branch and they set it at $35 an hour in 1977. If you extrapolate that to today’s dollars, that’s almost $200 an hour. So what we’re asking for is something to basically track inflation. The federal government when they hire public defenders, court-appointed public defenders, they pay $140 an hour. And most states are in the either close to $100 or around the $90 level. So Wisconsin is literally the lowest in the country.

Frederica Freyberg:

What has that meant for indigent defendants, when state employee public defenders have to appoint private lawyers at that $40 rate because of conflict of interest or other inability to represent them?

John Birdsall:

Well, first of all, 40% of all the SPD cases are handled by assigned counsel in Wisconsin. That’s 58,000 cases a year. So what it means for the $40 an hour rate is that a lot of attorneys are declining to take these cases anymore and it’s throwing the system into disarray all over the state. And that includes up in rural areas, up in the Bayfield, Ashland area, down in La Crosse, up in Marathon, even in Milwaukee, where they can’t find people for weeks and weeks and months and months and people sit in jail and victims have to keep coming back to court. The county, of course, has to house the people in the jail. People lose their jobs. It’s really reaching not just a crisis level constitutionally, but a systemic breakdown is impending in Wisconsin.

Frederica Freyberg:

Now, justices who heard your petition agreed that the rate is abysmal, but seemed reluctant to legislate much less budget from the bench. What about that concern on their part?

John Birdsall:

Well, my argument to the court — and I understand the view that we have a separation of powers doctrine and they don’t want to impose their will on the legislature. But my argument, at least, to them was that we actually have a shared authority doctrine in Wisconsin. So in the area of judicial court appointments — and the court recognized that in 1995 in a major decision that they handed down. And I reminded them of that, that we have a less of a separation of powers issue rather in Wisconsin. Rather, a coordinated powers issue in Wisconsin. So what — the bottom line is that the court is ultimately responsible for the effective and efficient operation of the court system. And with the legislature literally bleeding out the public defense system, they’re making it impossible. So at $40 an hour, the legislature has basically taken away a large tool that the court needs to run the court system.

Frederica Freyberg:

So if the court, however, did rule that they will raise the rate for all other kind of court-appointed lawyers, does that bode well, in your mind, for this next piece that you and others are so concerned about, that being the appointed public defender rate of pay?

John Birdsall:

Well, if I had to predict, the cost of the new $100 an hour rate is going to fall on the counties, which they’re going to view, I think correctly so, as an unfunded mandate. So in essence the court is directing the payment of funds and they’re just placing it on counties rather than on state taxpayers. At the end of the day, though, somebody’s going to have to raise that rate to avoid the system literally shutting down. And I think that the counties are now going to be coming to the legislature and saying you have to address this issue because we can’t afford to fund this when it’s really the state’s responsibility. That’s what I think’s going to happen.

Frederica Freyberg:

And the cost, I understand it, of this raising the rate for court-appointed attorneys would be $32 million a year?

John Birdsall:

Approximately, yes.

Frederica Freyberg:

And who are these court-appointed attorneys compared to the public defender-appointed attorneys?

John Birdsall:

Well, they’re oftentimes the same people. But the public defender’s office interviews everybody who’s accused of a crime who claims to be indigent. And so either — and 60% of those cases are handled by staff public defenders as part of the agency. The rest are sent to private bar lawyers. If — two issues have to be addressed. One is if the person doesn’t qualify for a public defender appointment, then — and they’re still too poor to afford a lawyer, then the court will appoint one at the new rate. Or in some of these counties that are having the dire needs up north in particular, attorneys will refuse to do public defender appointments. They’ll wait for the court to appoint them at the higher rate, which just makes economic sense.

Frederica Freyberg:

Yeah. We need to leave it there. But thanks very much for your explanation and for giving us the news that the state supreme court actually did rule to raise the $70 rate. John Birdsall out of Milwaukee, thanks very much.

John Birdsall:

Thank you.