By Spencer Lindsay
Statement of the Problem
The Constitution of the United States guarantees a right to an attorney in all criminal proceedings which may result in imprisonment. The Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right to…have the Assistance of Counsel for his defence (U. S. Const. amend. IV).” The right to an attorney can also be found in the Fifth and Fourteenth Amendments’ guarantees of due process (U. S. Const. amend. V., U. S. Const. amend. XIV). The Supreme Court held in its landmark decision Gideon v. Wainwright: “the right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner’s trial and conviction without the assistance of counsel violated the Fourteenth Amendment, (Supreme Court of the United States 1963)” because “Not only… precedent, but also reason and reflection, require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him (Supreme Court of the United States)[.]” This right creates a duty for state governments: they shall ensure that the poorest members of society can have their day in court. For this reason, all 50 states and the District of Columbia have established public defender’s offices to provide legal defense for the indigent (National Center for State Courts 2015).
Too often state public defender’s offices do not go far enough to ensure the right to counsel for low income Americans. Attorney access for low income individuals in the United States remains severely limited. The current structure in the US is only meeting about 20 percent of the legal needs of low income Americans (NORC at the University of Chicago for Legal Services Corporation 2017). Former Attorney General Eric Holder has called the lack of sufficient legal counsel for low income Americans a “crisis (Brennan Center for Justice. 2009).” Lack of proper funding for low income defense has arguably had tragic ramifications for low income defendants facing the death penalty (Douglas 1995) and perpetuated racial disparities in the American justice system (Marcus 1994). To more effectively ensure the US Constitution’s right to legal counsel, states must make serious changes to the way in which or the extent to which they fund public defenders offices.
Wisconsin’s Public Defender’s office certainly has a funding problem, but some say all states have this same problem (Breitenbach 2016). In others it may certainly be worse. I hope to lend insight into the specific issues of Wisconsin, but also that my findings and recommendations may have some generalizability across states. Wisconsin’s Public Defender problem is not unusual. I hope, by addressing it, to lend insight into the crisis as a whole.
The Landscape of Public Defense in Wisconsin
The underfunding of state public defenders’ offices across the US has led to two main issues for states . First, underfunding can lead to caseloads for public defenders that are too large to manage leading to inadequate representation for defendants (Gershowitz and Killinger 2011). Nationwide, individuals who are appointed public defenders are more likely to go to jail and are likely to serve longer sentences compared to their privately represented counterparts (Liptak 2007). Wisconsin is exceptional in this regard. Wisconsin is the only state in the country that constitutionally mandates a maximum caseload for public defenders (Farol 2010). Second, underfunding can lead to inadequate coverage. While the state may be able to ensure legal representation for the absolute poorest members of society, it may not be able to ensure representation for those who do not meet rigid income requirements but need free legal assistance nonetheless. While states nationwide do have problems with regards to public defenders having too many cases to cover their entire case load adequately (Taylor 2011), the issue in Wisconsin is one of inadequate coverage. Many poor Wisconsinites are unable to afford an attorney and do not have access to a public defender.
In order to be eligible for public defense in the state of Wisconsin, an individual must have an income under 115 percent of federal poverty level and must have assets totaling less than $10,000 (with the first $30,000 of a home’s value excluded (Wisconsin Administrative Code 1995). Act 32 froze the income cap at 115 percent of the Federal Poverty Level in 2011 (Berkos 2012). This means that individuals cannot be appointed a state public defender if they are members of a single person household and make more than more than $12,523.50 (Department of Health and Human Services 2016).17 Members of four person households are ineligible for public defense if they make more than $25,702 (Department of Health and Human Services). Because these thresholds have been held constant relative to the 2011 FPL, both are slightly below current Federal Poverty Level (Department of Health and Human Services 2020). Individuals who make one dollar over this threshold are ineligible for a state defense. The problem is immediately apparent. The average attorney costs $3,500 for a felony case defense and $1,000 for a misdemeanor defense (Thervo 2020). A felony defense could cost a single individual making $15,000 per year close to a quarter of their annual income and a family of four making $30,000 over ten percent of their annual household income. These incomes would make individuals ineligible for a state public defender. When one considers that the average rent for a one bedroom apartment in Dane County, which is home to nearly ten percent of the state’s population, is over $1,000 per month or $12,000 annually (Rent Data 2020), it inconceivable that all of the state’s residents who are ineligible for a public defender would be able to afford an attorney without risking serious financial hardship. While judges can appoint attorneys for low income defendants who are not entitled to a state public defense attorney at the expense of the county, this process is problematic for a number of reasons. First, rather than being standardized on the basis of income, appointment of an attorney is entirely a matter of judicial discretion. Some judges may be more sympathetic to low income defendants than others. If one is lucky enough to be appointed an attorney at the expense of the county, there is no guarantee of their quality, since they are likely to not be trained in the same fashion as public defenders. This system also pushes costs on to counties rather than the state, funds which may otherwise be used for necessary goals, such as improving school systems.
Estimating the precise number of Wisconsinites who fall into this coverage gap is difficult but given that roughly one in ten Wisconsinites make between $15,000 and $25,000 (Williams 2020, ten percent seems like a reasonable, perhaps conservative, estimate. If accused of a crime, those whose incomes fall between qualifying for a public defense and being able to afford an attorney must choose between financial hardship and putting forth an adequate defense. It is easy to imagine individuals who fall into this coverage gap striking plea deals for crimes they may not have committed to avoid the financial costs associated with presenting a defense. Barbara S. Gillers, the chair of the ABA Standing Committee on Ethics and Professional Responsibility, has stated that “Hundreds of times weekly, prosecutors negotiate plea deals with misdemeanor defendants who lack counsel and may agree to unfair dispositions (Malima 2017).”
The State spends $89 Million on the Public Defender’s office (Plotkin 2020). It has 614.85 Full Time Equivalent employees, 374.20 of whom are lawyers (Plotkin). Between 2010 and 2017, the State Public Defender’s office managed an average of 136,000 cases per year (Plotkin). It should be noted that the state also spends $1.2 Billion per year on corrections (State of Wisconsin Legislative Audit Bureau 2019) and has 24,000 inmates (Conde 2018).
Wisconsin has taken steps in recent years to improve its public defender system. Most notably, the state has increased the hourly rate paid to private counsel in cases where there are conflicts of interest from $40 to $70 per hour (Meyerhoffer 2019). This newly implemented policy will help incentivize private attorneys to take public defender’s office cases. There are also proposals to incentivize lawyers to take public defender’s office cases in rural areas (Malina 2017). This would improve access to attorney services for low income Wisconsinites. These proposals, however, do not address the income-coverage gap created by Wisconsin state law.
The state of Wisconsin has a moral imperative to act to diminish this income-coverage gap as to better ensure the right to an attorney for the poorest members of society. Given that the eligibility threshold has fallen below the Federal Poverty Line, they may also have a legal obligation to act. Some outside observers may recommend that the state eliminate its constitutional provision limiting the caseload of public defense attorneys. This recommendation is misguided. Though eliminating the caseload limits would allow the state to expand coverage, the quality of coverage for those who are eligible for Public Defense would likely be reduced. The goal should not be to jam as many people into the Public Defense system as possible but rather to provide quality defense for Wisconsinites who otherwise would not be able to afford a defense attorney. This solution may solve Wisconsin’s income-coverage problem but is likely to create a case-management problem.
The best solution to this problem is to invest in the State Public Defender’s office to raise the income (and potentially the asset) cap. Wisconsin should double its spending on the State Public Defender’s office from $89 Million to $178 Million. This should allow the state to raise the income cap from 115 percent of FPL to 200 percent of FPL and roughly double the number of citizens eligible for a public defense. This proposal effectively doubles the infrastructure of the State’s Public Defender office, enabling the state to greatly expand coverage. This is not an unrealistic proposition. Washington DC, for example, spends five times per capita more than Wisconsin on the Public Defender’s office (Buchanan 2019). Given the large number of law school graduates who do not go on to practice law, there seems to be a necessary supply of lawyers (American Bar Association 2019).
While this may seem like a steep cost to the state, the costs are likely not as great as they appear. Paying for this measure entirely through the income tax code, in a vacuum would mean an average tax increase of just $29 per taxpayer per year or $2.50 per month (Wisconsin Department of Revenue 2018). Even if this proposal were funded purely through tax increases, these tax increases would barely be noticeable. But the proposal almost certainly would not have to be funded entirely through taxes. Some of the costs, perhaps all, would be off-set by savings. Some of this savings would come from corrections. Given that the annual corrections spending per inmate in Wisconsin is roughly $50,000, if the expansion of public defense reduced the prison population could go a long way towards completely offset the cost of the expansion. In Missouri, it is estimated that underfunding the Public Defender’s Office may have cost the state as much as $200 million per year in correction costs (Barrett 2016), but due to the particularities of state politics this number is not likely to be generalizable to Wisconsin. It is, however, an indication that savings could be substantial. Exactly how much the cost of expansion will be offset by corrections savings is difficult to tell, but it is likely that a good portion of the expansion could pay for itself. There would also be savings at the county level, because the state would be providing service to some who previously would have fallen under the county’s jurisdiction. The state could also fund the expansion by cutting waste elsewhere or closing tax loopholes.
Doubling the state’s investment in the public defender’s office is a bold change in policy. There are admittedly several unknowns as to how the policy change affects the state, including its net cost (though it is likely to be low or potentially even lead to a net savings). Nonetheless, the state faces a moral imperative to act to protect its most vulnerable citizens. I recommend that Wisconsin double the size of its Public Defender budget to better serve its people and ensure that the right to an attorney is better protected in the state.
Of course, this solution is subject to the political will of the legislature. Any tax increase, even noticeably small ones, always present a political challenge. Any large scale investment in the Public Defender’s office is unlikely, perhaps unimaginable while Republicans control the state legislature. Nonetheless, this is a noble policy goal which the Democrats should push for, even if they must wait until they are in power to implement it.
American Bar Association. “Employment Outcomes as of April 2019 (Class of 2018 Graduates).” Americanbar.org. May 6, 2019. https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/2018-law-graduate-employment-data.pdf.
Barrett, Michael. “The Impact of Neglecting Indigent Defense on the Economics of Criminal Justice.” . Louis ULJ 61 (2016): 681.
Berkos, Daniel. “Notice of Revision of Administrative Rules State Public Defender.” Wisconsin State Public Defender’s Office. March 30, 2012.
Buchanan, Alvis. “Fiscal Year 2020 Congressional Budget Justification.” The Public Defender Service for the District of Columbia. May 18, 2019. https://www.pdsdc.org/docs/default-source/default-document-library/pds-fy-2020-congressional-budget-justification-(002)b340fac3c02264be8d48ff00007f1dad.pdf?sfvrsn=91629ed0_0
Conde, Ximena and the Associated Press. “Report Shows Record Number Of Adults In Wisconsin Prisons.” Wisconsin Public Radio. October 31, 2018.
Department of Health and Human Services. “2011 Poverty Guidelines, Federal Register Notice.” hhs.gov. March 14, 2016. https://aspe.hhs.gov/2011-poverty-guidelines-federal-register-notice.
Farol, Donald. “A National Assessment of Public Defender Caseloads.” Justice Research and Statistics Association Annual Meeting, October 28, 2010.
“Federal Poverty Level (FPL) – HealthCare.gov Glossary.” HealthCare.gov. Department of Health and Human Services. Accessed April 5, 2020. https://www.healthcare.gov/glossary/federal-poverty-level-fpl/.
Gershowitz, Adam M., and Killinger, Laura R. 2011. “The State (never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants.” Northwestern University Law Review 105 (1): 261–301.
Gideon v. Wainwright 372 U.S. 335 (1963), p. 335
Gideon at 372
Holder, Eric. “Attorney General Eric Holder on Indigent Defense Reform”. Brennan Center for Justice. Nov. 18 2009
“Indigent Defense State Links.” NCSC.org. National Center for State Courts, September 23, 2015. https://www.ncsc.org/Topics/Access-and-Fairness/Indigent-Defense/State-Links.aspx.
Legal Services Corporation. 2017. “The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans.” Prepared by NORC at the University of Chicago for Legal Services Corporation. Washington, DC.
Legislative Audit Bureau, State of Wisconsin. “Adult Correction Expenditures” Report 9-4. May 2019.
Liptak, Adam. “Gap Seen Between Court-Appointed Lawyers and Public Defenders.” New York Times. April 13, 2007
Malina, Chris. “Legislation Aims To Address Attorney Shortage In Wisconsin’s Rural Counties.” Wisconsin Public Radio. Nov. 28, 2017
Marcus, Rebecca. 1994. “Racism in Our Courts: The Underfunding of Public Defenders and Its Disproportionate Impact Upon Racial Minorities.” Hastings Constitutional Law Quarterly 22 (1).
Meyerhoffer, Kelly. “Budget Committee Votes to Boost District Attorney, Public Defender Pay.” Wisconsin State Journal. May 30, 2019.
Plotkin, Adam. “Facts at a Glance.” Wisconsin State Public Defenders. Wisconsin State Public Defender’s Office. Accessed April 5, 2020. https://www.wispd.org/index.php/about-the-spd/spd-facts-at-a-glance.
Sarah Breitenbach. 2016. “Right to an Attorney? Not Always in Some States.” Stateline.org, 2016.
Tesha, Jason. “Prosecutors must maintain ethical conduct during misdemeanor plea deals, ABA ethics opinion says.” ABA Journal. May 9, 2019.
Thervo. “2020 Attorney Fees: Average Hourly Rates & Standard Costs.” Thervo. Accessed April 5, 2020. https://thervo.com/costs/attorney-fees.
Taylor, Kate. “System Overload: The Cost of Under Resourcing Public Defense.” Justice Policy Institute. July 2011.
Vick, Douglas. 1995. “Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences” Buffalo Law Review 43 (2): 329–460.
Williams, Noah. “Household Income in Wisconsin in 2017.” Wisc.edu. University of Wisconsin. Accessed April 5, 2020
Wisconsin Administrative Code. Chapter PD 3 under s. 13.93 (2m) (b) 1., Stats., Register, July, 1995, No. 475.
Wisconsin Department of Revenue. “Individual Income Tax Statistics Report for Tax Year 2016.” Feb. 28, 2018. https://www.revenue.wi.gov/DORReports/16intxst.pdf
“Wisconsin Fair Market Rent for 2020 Accurate Rental Price Data.” 2020 Fair Market Rent in Wisconsin | RentData.org. Rent Data. Accessed April 5, 2020. https://www.rentdata.org/states/wisconsin/2020.
U. S. Const. amend. IV.
U. S. Const. amend. V.
U. S. Const. amend. XIV.