RACINE — “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”
It’s a right many Americans never exercise, but one each is entitled to — legal representation in the event of being charged with a crime. But what happens when a person is charged and jailed without funds to get their own attorney or post bond, and an attorney cannot be found for them?
That is the reality for some inmates in the Racine County Jail, as a shortage of public defenders and private bar attorneys willing to take on these cases is causing backups in not only the local court system, but statewide.
The county Public Defender’s Office typically represents those who cannot afford to hire an attorney, but sometimes they must refer a case to a private bar attorney. One of the reasons for that is conflicts of interest.
“Let’s say a drug case has eight defendants and they all qualify for state public defender representation,” said Adrienne Moore, regional attorney manager for the Racine Region of the Public Defender’s Office. “Due to the conflict situation, the agency is able to assign a staff attorney to one defendant and must find private attorneys for the remaining seven co-defendants.”
In this case, seven private attorneys would be asked to step in and take on the rest of the co-defendants’ cases.
“The private bar attorneys who accept appointments are an integral part of Wisconsin’s indigent defense system,” State Public Defender Kelli Thompson stated in a petition filed with the Supreme Court of Wisconsin. “These private attorneys have a substantial impact on the delivery of justice and the state public defender (SPD) is a full supporter of its private bar partners.”
A shortage in the Racine public defender’s office has also called for more outside appointments. In the past few months, Moore said the Racine office lost five attorneys. Those attorneys’ caseloads had to be appointed to already overloaded staff attorneys, meaning more private bar attorney appointments.
“This obviously exacerbates the problem of an already low number of private attorneys willing to take SPD cases,” Moore said.
The Racine public defender’s office has since hired three new attorneys, but is currently seeking two more attorneys to fill the remaining two slots.
A cost issue
The problem is twofold, according to Sam Christensen, Racine County clerk of courts. Firstly, he said there is a shortage of criminal attorneys in the area.
He also cites the state’s low public defender reimbursement rate for private bar attorneys, which is $40 an hour. That rate was set in 1995, and is the lowest in the nation.
According to a State Bar of Wisconsin 2017 study, the median hourly billing rate for a criminal law private practitioner is $183 an hour. The average hourly billing rate for a legal associate with no experience is $175; paralegals are paid an average of $100 per hour.
“As a result of the shortage of private bar attorneys willing to accept appointments at the $40 per hour rate, the justice system is put on temporary hold (affecting defendants as they wait in custody or with bail restrictions, prosecutors with open cases, victims waiting for resolution, and court calendars at standstills,” Thompson’s petition states.
Moore said that the Public Defender’s Office appointment secretaries are having to contact a greater number of private attorneys willing to accept a case at the current rate. It becomes even more difficult, she says, for complex, felony cases.
“It is not uncommon for our appointment secretaries to make 250 to 300 contacts on a complex felony,” Moore said.
County steps in
If the Public Defender’s Office is unable to find an attorney for a case, the county court is asked to step in. The court then assigns the case, paying the private bar attorney $70 an hour, a rate set by the Supreme Court of Wisconsin. That is $30 more an hour than what the public defender’s office rate.
“Do we let this person stay in custody, and not keep the case moving?” Christensen said. “It’s not fair to the county to pay to keep this person in jail. It’s not fair to the individual to sit in jail without representation when they can’t afford an attorney, so we have been appointing those cases.”
In the past three months, Moore says the court has appointed approximately 50 cases in which the client qualified for state public defender representation.
“This directly impacts our county budget, and it ends up costing taxpayers more for these county appointments than if the SPD provided representation,” Moore said.
Many are advocating for an increase to the public defender reimbursement rate for private attorneys to make it more attractive to accept cases from the public defender’s office. Racine County and approximately 20 other counties have passed resolution to that effect.
The cost to the county will increase in 2020, when the Supreme Court rate increases to $100 an hour; however, those rates will not increase the public defender reimbursement rate. It will only widen the gap between what the public defender can pay and what the county courts can pay.
The State Public Defender Board issued a statement to the Supreme Court of Wisconsin in April expressing the need to increase the reimbursement rate.
“The current reimbursement rate severely disrupts both the quantity and quality of representation. As the reimbursement rate has become more disparate from the market rate of compensation, there has been a significant impact on defendants, victims and all sectors of the criminal justice system, at both the state and county level,” the statement said.
“It’s not fair to the county to pay to keep this person in jail. It’s not fair to the individual to sit in jail without representation when they can’t afford an attorney, so we have been appointing those cases.” Sam Christensen, Racine County clerk of courts