Every day, Elkhorn lawyer James Duquette gets emails from across the state—particularly from northern Wisconsin—asking him to take cases.
He hears from Barron County “all the time.” He hears from Taylor, Brown and St. Croix counties, too.
While he believes every defendant deserves the best possible representation (the Sixth Amendment guarantees the right to a competent lawyer), he has to decline those requests.
He doesn’t have the time, especially when private attorneys who take public defender cases in Wisconsin are paid at the lowest rate in the country—$40 per hour. In some cases, that would not even cover a lawyer’s overhead costs.
Staff attorneys in the public defender’s office can’t take all the cases that qualify for public representation. Some cases are rejected because staff attorneys already represent co-defendants or witnesses, creating a conflict of interest. Other cases are rejected because staff attorneys don’t have time.
Public defender offices statewide rely on hiring private attorneys to handle the cases staff attorneys can’t, but finding enough private attorneys to take cases for $40 an hour is becoming increasingly difficult.
Officials from all sides in Walworth County’s courthouse—from defense attorneys who take on these cases locally, to judges, to the county’s top prosecutor—agree with legislative efforts to increase the pay for private attorneys who take public defender cases.
Duquette admitted it can be difficult to make people understand the worth of adequately funding the defense of those accused of crimes. It’s easier to generate support for “making the streets safe” and for spending more on police, prosecutors and jails.
He said it’s about fairness.
“It’s an embarrassingly low fee with what we’re expected to do,” he said. “I think that if the defense side is gonna get the short side of the financial stick, then that’s just not a fair system.”
‘What they’re worth’
Mackenzie Renner, head of the public defender’s office in Walworth County, said termination of parental rights cases are time consuming and require specialized knowledge. And while they are “truly devastating for families,” the list of attorneys who can handle such cases is small.
So Carol Unger-Keizer said she feels compelled to fill the need, even if it requires travel. She has gone to Barron, Waupaca and Portage counties.
“I’ve been traveling a little bit,” she said. “And I wouldn’t have to do that if attorneys got paid what they’re worth.”
The low rate doesn’t hit Unger-Keizer as hard as other attorneys because she has lower overhead costs compared to others. She said she’s an “exception,” and the low pay rate is freezing out lawyers with more experience.
“We all have that service attitude as attorneys that we want to help people,” she said. “(You) can’t do that if you’re not being fairly compensated.”
In 1977, the Legislature created the state Public Defender’s Office and set the hourly rate for private attorneys at $45 per hour spent in court. Then 15 years later, the Legislature raised the rate to $50.
But in 1995, the rate went down to $40 and has remained there since.
For a criminal defense attorney in private practice, the median hourly billing rate is $183, according to a 2017 study from the State Bar of Wisconsin as cited in a 2019-21 biennial budget issue paper.
If the 1995 rate of $40 had been adjusted annually for inflation, it would have risen to $78.75 by 2016, according to the issue paper. The governor and Legislature are considering raising the rate to $70 an hour.
In 2018, the state Supreme Court called the $40 rate “abysmally low.”
In some counties, offices can reach out to hundreds of attorneys—sometimes more than 900—before finding one who will take a case, according to a presentation from public defender officials at Walworth County’s Criminal Justice Coordinating Committee meeting in March.
In Bayfield County, 99% of appointments are lawyers from out of county.
Adam Plotkin, legislative liaison for the state public defenders, said 39% of public defender cases statewide are assigned to private attorneys.
From 2012 to 2017, the number of attorneys who took public defender cases across the state decreased from 1,099 to 921.
In Walworth County, the public defender’s office has a list of 23 lawyers it can contract. Of those 23, two have stopped practicing law, six won’t take public cases because they prefer private pay, four take only misdemeanors and some can take only a limited number of cases because they are busy or have conflicts.
Only four can consistently take higher-level cases, Renner said.
About 56% of the approximately 900 lawyers on the statewide appointment list take public cases regularly, meaning 26 or more cases in a year, according to the issue paper.
Renner, who is one of five staff attorneys in Walworth County’s public defender’s office, said the current system is asking lawyers to provide a constitutional right at a financial loss.
When the public defender’s office in Elkhorn was looking for a lawyer to defend a person accused of child abuse, one lawyer responded: “Life is too short to take such a horrible case on the public defender dime,” according to the presentation.
At the March meeting of local criminal justice officials, District Attorney Zeke Wiedenfeld said some might be surprised seeing his office on the same side as the public defenders.
But he supports raising the $40 rate.
It’s a proposal seeing similar support throughout the courthouse.
While some have said the issue is moving toward a constitutional crisis, Judge Phillip Koss said the state is beyond that point. Those who are presumed innocent are “languishing in jails,” he said.
Additionally, he said, the attorneys handling these cases typically have less experience.
Even so, Walworth County is not seeing the same level of problems as northern parts of the state, he said.
Judge Kristine Drettwan, like Koss, is a former prosecutor. At the March meeting, she said the raise was a no-brainer, calling the current rate appalling. Daniel Johnson, another judge, said he had to stop taking public defender cases while working as a private attorney because of the overhead costs he faced.
County Board Chairwoman Nancy Russell said being poor should not be a reason someone isn’t well represented in court.
The county board unanimously passed a resolution April 16 supporting the raise. The Rock County Board passed a similar resolution.
Raising the rate to $70 an hour is in Gov. Tony Evers’ budget proposal, and members of the Legislature have signaled support for it as well.
Plotkin, the legislative liaison, said the only difference between what Evers and the Legislature are proposing is that Evers wants to automatically adjust the pay in the future to match the rate of inflation.
If the request is approved to begin paying $70 an hour by July 1, it would cost $33.23 million over 2019-21. It the rate were to begin on Jan. 1, 2020, it would cost about $8 million less.
Plotkin said last week the measure could soon get its hearing before the Joint Finance Committee. He said he has heard “pretty universal support” across both parties and chambers.
Rep. Amy Loudenbeck, R-Clinton, is one of the legislators publicly showing support for the change.
Plotkin’s office has been asking for the measure to be included in every budget since the rate went down to $40.
Now, he said, he is “cautiously optimistic” about its success.
Arguing to pay lawyers more is not always an easy sell.
But those interviewed for this story said the impact goes beyond lawyers’ wallets to defendants’ lives. If someone had a family member facing incarceration, Koss said, they would want that family member to get adequate assistance.
“People’s liberties are at stake,” he said.
The public pays law enforcement well, Koss said, and should be willing to do the same for the other side.
“It’s the only way the system works is when everybody’s interests are well represented,” he said.
The low pay rate and resulting struggle to find lawyers to take cases can leave the whole criminal justice system stalling. Koss said he has not seen bad delays locally.
Elsewhere, however, two inmates in eight months took their own lives in the Wood County Jail while they waited for attorneys on their cases, according to a recent story in The Appeal, a website reporting on criminal justice issues.
“There’s nothing scarier than having the whole power of the state against you and having to stand alone,” Renner said.
Duquette recently got a call from Kenosha County. It needed someone to take a case.
But he had to decline.
“I told them, ‘Keep me on the list for future cases,’” he said. “But I got 100 things that are popping right now. I couldn’t do the kind of job that the defendant deserves.”