Ineligible Receivers

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A single adult is charged with a misdemeanor traffic violation. The offender is released on signature bond and returns to a part-time job which pays $9 an hour. In need of legal representation, the offender’s bank account has a balance of only $50 which makes application for a state public defender a seemingly legitimate option.

But, based on current qualification levels, the offender would be ineligible for state assistance, according to SPD Public Information Officer Randy Kraft.

“The current measures are based on 1987 standards and now 20 years have passed since any adjustments, leaving many of our poor without access to public defender representation,” said Kraft.

For the third time in the last five years, legislators have drafted a bill to update the minimum requirements for Wisconsin residents in need of a public defender.
Similar proposals in 2003 and 2005 failed to generate enough support to reach either the Senate or Assembly floors, but the new legislation has a better chance of success, according to sponsors, because of strong bi-partisan backing and escalating costs to counties.

Sense of Urgency

Introduced on Nov. 6, the proposal seeks to increase eligibility standards statewide for SPD applicants and decrease the number of indigent defense cases assigned by counties.

“Things have escalated a bit since the first bill in 2003 and I think that people are very concerned with not being able to appoint an attorney when one is necessary,” said Kyle Leighton, a spokesman for Sen. Jim Sullivan, D-Wauwatosa, a co-sponsor of the bill. “Maybe there wasn’t a sense of urgency before because the issue was new, but now it’s the third time around and something needs to get done.”

Though the proposal has yet to even be assigned a bill number, Leighton said 11 senators and 29 representatives from both sides of the aisle have endorsed the legislation.

He added that the Senate’s Courts and Corrections Committee chaired by Lena Taylor, D-Milwaukee, could take up the bill in the coming months and then it would likely head to the Assembly committee, chaired by Gary Bies, R-Sister Bay, a co-sponsor of the bill.

If the bill makes it out of committee, Leighton hoped it could be voted on by both houses during the 2007-08 legislative session.

Proposed Criteria

The proposed methodology for determining who would be eligible for SPD assistance is rooted in current criteria for Wisconsin’s W-2 welfare program, according to state Rep. Gordon Hintz, D-Oshkosh, one of the primary sponsors of the proposal.

An individual’s assets and income could total no more than $2,500, excluding a home valued at up to $30,000 and a vehicle valued up to $10,000. Income levels are based on current federal poverty guidelines, which have almost doubled since 1987, though SPD eligibility standards have not changed.

“When this was brought to my attention, what jumped out at me was that barely anyone can qualify for a SPD,” said Hintz. “One of the problems now is if you own anything of substantial value, you are not likely to qualify for public defender.”

Kraft said current eligibility standards are hard to quantify in a single number, but they are based on the Aid to Families with Dependant Children (AFDC) tables, which he called “obsolete.”

Neither Hintz nor Leighton have encountered any vocal opposition to the new legislation to this point, but both expect the estimated costs will prompt some level of debate among legislators.

Though the state would not incur any cost during the current biennium, the SPD projects an initial cost of approximately $4.3 million in 2010. Annual contributions of $4.6 million starting in 2011 would pay for additional SPD staffing and compensation for cases absorbed by the private bar.

“There is always a concern when you are talking about things costing in the millions,” said Leighton. “Hopefully people will see this as a great opportunity to improve our justice system.”

Kraft estimated that the SPD would be able to handle an additional 15,000 cases per year and said state costs would be offset by savings in county budgets with fewer private bar appointments because of fewer SPD denials.

County Crunch

The current SPD qualifications have squeezed resources in counties across the state and the effects have also been felt by prosecutors and judges.

J. Mac Davis, chief judge of the Third Judicial District, said appointments made in Waukesha County have risen throughout the past four years, along with the costs to pay private defenders.

Figures provided by Waukesha County Clerk of Courts business manager Robert Snow revealed an increase in appointments by more than 115 from 2004 to 2006. Through the first nine months of 2007, the county has already filed 270 orders for reimbursement.

Likewise, the cost to the county for the appointments has grown since 2004. Waukesha spent approximately $96,000 on 216 appointments in 2004, compared to more than $134,000 in 2006 for 331 appointments. With three months left in 2007, annual expenditures have almost surpassed the 2006 totals.

“Because our appointments are for people rejected by the Public Defender, they often have some income, such as part-time work,” said Davis. “But they can’t come up with a retainer for a private lawyer.”

District Four Chief Judge Darryl W. Deets has also seen an upswing in appointments and costs in Manitowoc County. From 2004 to 2006, court appointments increased from 36 to 58. Through Oct. 31, 2007, 57 have already been filed, according to Daniel Whitney, the county director of business operations.

During that same time span, costs have increased from around $17,000 in 2004 to more than $26,000 this year.

Deets said that one of the reasons the state public defender system was set up was the state leadership at that time understood that providing qualified and effective defense counsel was a statewide issue.

“The state leaders at that time also understood that judges are placed in a difficult position when we are forced to find qualified and effective counsel who will take these cases at greatly reduced rates,” said Deets. “As time goes on, only new and inexperienced attorneys make themselves available for this important service.”

Milwaukee County District Attorney John Chisholm is experiencing problems resulting from inexperienced defense attorneys. He has witnessed firsthand the kind of crippling effect the current standards can have on efficiently processing cases.

“You want experienced, competent and committed defenders and prosecutors,” said Chisholm. “Better representation at both ends of system, means people receive a much better version of justice.”

Chisholm said on several occasions a public defender’s caseload cap precludes them from taking on more complex conspiracy or criminal cases. The county is then responsible for assigning the case, but private attorneys may decline to take more time-consuming cases.

“A private attorney may look at a wire-tap case and say, ‘
No thank you,’” said Chisholm.

“We’ve had instances where they have gone through two or three attorneys and the case is still sitting in scheduling. That’s a huge concern.”