WHERE HAVE ALL THE LAWYERS GONE? Underpaying defense attorneys no way to be ‘tough on crime’

Listen to this article

On May 24, the Wisconsin Supreme Court, with two justices dissenting, dismissed an appeal of the Court of Appeals decision in State v. Lee, 2021 WI App 12, in a per curium “decision” of less than one page.

The Supreme Court decided that review has been “improvidently granted” – this action came after briefing, including several non-party briefs, one amicus brief and oral arguments. It is not exactly the most important question associated with this case. But one wonders if the court appreciates how much waste was incurred by attorneys drafting briefs, preparing and making oral arguments only to hear the court say “never mind.”

The only reason for the dismissal came from a concurring decision authored by Justice Rebecca Bradley and joined by two other justices, stating that deciding the case “would require nothing more than an opinion from this court agreeing with the court of appeals. There are much better uses of this court’s time than repeating work already done correctly by a lower court.” Well maybe, but how about the time lawyers spent filing briefs and making arguments?

In any event, the Court of Appeals decision, now the final one in the case, draws attention to a critical issue in Wisconsin: The need to find defense counsel for criminally charged defendants. Wisconsin law requires that a preliminary hearing be held within ten days of a defendant’s initial appearance if the defendant is in custody on a felony charge and bail is set in excess of $500. WIS. STAT. § 970.03(2).

In this case, Lee was charged with two felony drug offenses and a single count of identity theft and was deemed eligible for representation by the Wisconsin State Public Defender’s Office because of his indigence. But he was held in custody for 101 days without counsel while the SPD searched for an attorney who was willing and able to represent him. His preliminary hearing was not held until 113 days after his initial appearance.

During the time Lee was unrepresented, circuit court judges and a court commissioner, on their own motions, repeatedly extended the statutory time limit for holding a preliminary hearing. Each time, the court found cause to do so based solely on the fact that the SPD was still searching for counsel. More than 100 potential attorneys had declined to represent Lee, and Lee continued to request that counsel be appointed for him or that the charges against him be dismissed.

The facts of this case reveal a breakdown in the ways our system appoints attorneys for indigent defendants. Even before the COVID-19 pandemic, SPD staffing shortages and a low hourly rate for appointed counsel resulted in delays in finding counsel for indigent defendants, especially in more rural parts of the state. Delays will most likely increase as the criminal justice system responds to a statewide backlog of more than 17,000 felony cases.

On June 27, 2018, the Wisconsin Supreme Court issued In re the Petition to Amend SCR 81.02. Whereas the Supreme Court increased rates for court appointed lawyers under SCR 81.02 (1) to $100 an hour or a higher rate if set by the appointing authority, it declined to order the legislature to increase the rate for attorneys serving per Wis. Stats. ¶977.084m(c) of $40 per hour excluding most travel.

The Supreme Court noted that Wisconsin’s compensation rate for SPD appointed attorneys is “abysmally low” and, in fact, “is the lowest in the entire nation. Most attorneys will not accept SPD appointments because they literally lose money if they take these cases. Consequently, the SPD struggles to find counsel who will represent indigent criminal defendants.”

Let’s think about the SPD rate of $40 per hour. Assuming overhead expenses of 50% (they can be higher), the net income would be closer to $20 an hour. This is close to minimum wage and this accounting does not take into account the substantial debt most young lawyers bring to a new practice for college loans.

The effect is that trial courts, already over-burdened because of the COVID backlog, must conduct State v. Lee hearings to determine if a defendant is truly indigent and entitled to a court-appointed lawyer at a higher rate. Hello, but yes, most defendants are indeed indigent and these cases cannot proceed without defendants having appointed representation.

If politicians think that underpaying defense counsel shows to voters that they are tough on crime, they are sadly mistaken. Tough on crime means efficiency in our court system. Efficiency means appropriately compensated defense counsel. This is not only good politics; it’s essential for justice.