Washington, DC (June 28, 2018) -- Yesterday, the Wisconsin Supreme Court issued its formal order in the matter of the petition filed by the Wisconsin Association of Criminal Defense Lawyers (WACDL), the Wisconsin Association of Justice, and others seeking to "chang[e] the hourly rate of compensation for court-appointed lawyers to $100/hour, indexing that rate to annual cost of living increases, and specifying that the payment of an hourly rate less than the rate set forth in Supreme Court Rule 81.02 for legal services rendered pursuant to appointment by the State Public Defender under Wisconsin Statutes section 977.08 is unreasonable."
By that order, the set rate for lawyers appointed by the courts under Wisconsin Supreme Court Rule 81.02 will remain $70 per hour until 2020. Beginning in 2020, it will be $100, but only as respects appointments made by the courts. The court declined to rule that the statutory rate of $40 per hour for state public defender appointments is unreasonable. In addition, the Court declined to ban flat fee contracts. Instead, the Court deferred on these matters to a legislature that has refused to raise that rate in decades.
As revealed in a March 2013 NACDL report – Gideon at 50, Part I – Rationing Justice: The Underfunding of Assigned Counsel Systems – Wisconsin has long had the lowest statutory assigned counsel rate in the nation at $40 per hour. That is the rate paid to court-assigned counsel to represent criminally accused persons in Wisconsin who cannot afford a lawyer. This rate is set forth in the Wisconsin Statutes §977.08 and has been the same for more than 20 years.
"While the Court noted that the $40 per hour statutory rate for assigned counsel is 'abysmally low’ and that 'chronic underfunding of the Office of the State Public Defender (SPD) has reached a crisis point,’ the Court nonetheless missed an important opportunity to take action commensurate with the nature and severity of the public defense crisis in Wisconsin," said NACDL Executive Director Norman L. Reimer. "Even the increase in the $70 rate for those attorneys appointed by the courts of Wisconsin does not become effective until 2020. This delay, taken together with the declination by the court to ban flat fee contracts or take some action to ensure that accused persons do not go unrepresented for prolonged periods because of a shortage of lawyers able to take cases at the $40 per hour statutory rate, ensures that Wisconsin’s public defense system will remain in crisis indefinitely."
NACDL’s written comments detail how (i) the courts have the obligation to protect and enforce the constitutional right to the assistance of counsel and have the authority to act to assure this constitutional mandate is met, (ii) the Sixth Amendment right to counsel means more than a warm body with a bar card to appear with an accused, it requires an effective advocate, (iii) the cost of the state’s obligation to provide constitutionally required counsel cannot be placed on the backs of the counties or the private bar, and (iv) the consequences of low pay for court-appointed counsel is delay in the criminal justice system, and justice delayed is justice denied.
Video of the May 16, 2018, hearing is available here. In addition, all pleadings and submissions in this matter before the Wisconsin Supreme Court are available at https://www.wicourts.gov/scrules/1706.htm.
To learn more about NACDL’s extensive work in the public defense arena, please visit www.nacdl.org/publicdefense.
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