Another place Walker's budget is failing- defense attorneys

Talking about expenses that the state pays to guarantee defendants’ Constitutional rights isn’t exactly the sexiest topic. But as I looked at the recent releases from the Legislative Fiscal Bureau, I focused in on it because I knew the state was having difficulties in paying for those services. And sure enough, we need to find millions of dollars of new money just to carry out our requirements of adequate counsel as a state.

The Office of the State Public Defender (SPD) usually handles cases for indigent people accused of crimes that could involve incarceration, as well as other higher-level legal matters. But sometimes there isn’t enough staff to handle these cases, or ethics get in the way (unlike the righties on the State Supreme Court, the SPD does still have ethical standards). So these duties sometimes get contracted out to private attorneys, and state statute dictates what they get paid.

5. While the SPD employs trial and appellate staff attorneys to represent clients who qualify for SPD representation, SPD staff attorneys do not represent all clients who qualify for SPD representation. Due to an overflow of cases in excess of what can be assigned to SPD staff, as well as conflict of interests that may exist between SPD staff and potential clients, the SPD assigns certain cases to private bar attorneys. Base GPR funding for the biennial private bar and investigator reimbursements appropriation is $21,210,400 GPR annually. In addition to GPR, the SPD utilizes a portion of the program revenue generated from clients who are able to provide modest payments for legal representation to support private bar reimbursements. In 2015-16, the SPD utilized $977,000 PR from client collections to support private bar reimbursements.

6. Private bar attorneys are compensated pursuant to either: (a) a statutorily defined rate totaling $40 per hour for time spent related to a case in and out of court, and $25 per hour for travel of more than 30 miles; or (b) a flat, per case contracted fee that may not result in the attorney receiving more than he or she would under the statutory rate. Except for a number of misdemeanor cases, private bar attorneys are generally compensated pursuant to the statutory rate.

There already is a shortfall in this account, as the Fiscal Bureau says that the SPD will only have $44.7 million available to pay $53.3 million in billings from private attorneys, an $8.6 million backlog that’s increased by $1.6 million compared to July 2015.

These private bar costs have generally gone up in recent years, partly due to higher turnover of public defenders in post-Act 10 Wisconsin.

More cases must be assigned to private bar attorneys when staff attorneys are unavailable or unable to take cases. These situations occur when there are too many cases to be handled by staff as a result of high staff employee turnover or when staff attorneys are on leave (for example military, family and medical leave (FMLA), or terminal sabbatical leave). Over the past biennium, as a result of turnover the SPD has shifted cases to the private bar. The SPD's turnover rate in 2013-14 was 7.38% (shifting the equivalent of 23.7 statutory felony caseloads to the private bar). In 2015-16, the SPD experienced a turnover rate of 12.48% (shifting 41.7 caseloads to the private bar). As a result, the agency's 2017-19 budget request included a request for $4,935,000 GPR annually for private bar appointments. The SPD has experienced a turnover rate of 9.3% in 2016-17 through nine months (12% on an annualized basis).

Unfortunately for the SPD, Governor Walker’s budget only is giving another $3.4 million a year, meaning there is a gap of more than $3 million in this budget compared to what the SPD says it will need. And that’s on top of the $8.6 million backlog of bills that is projected to exist on July 1.

Of course, one way to avoid having to contract out for private attorneys is to have the state hire more public defenders. And an alternative listed in the budget paper mentions that hiring 10.8 more positions in the Public Defender’s office and adding $1.22 million to adequately pay private attorneys would save $350,000 vs what it would cost to keep state staffing the same. Seems like a logical move, but we'll see if it's followed when/if this topic is discussed in Joint Finance.

Once the cases begin for the SPD and/or private bar attorneys, they also have to pay for costs associated with receiving documents and other records that are part of their defense.

The SPD is responsible for the cost of transcripts of court proceedings that SPD staff and private bar attorneys request from the courts, for copying costs incurred by counties and other parties to provide SPD attorneys with discovery materials, and for the cost of interpreters needed for attorney-client communication and other case preparation (the courts are responsible for the costs of in-court interpreters). Discovery may include video and audio recordings. The SPD experienced an increase in payments for video recordings since 2004-05 due in part to 2005 Wisconsin Act 60 which codified requirements that law enforcement agencies make an audio or (audio/visual) recording of a custodial interrogation of a juvenile who is suspected of committing a crime if the interrogation is conducted at a place of detention. It also required law enforcement agencies to make a recording, if feasible, of a custodial interrogation of a juvenile suspected of committing a crime if the interrogation is conducted at a place other than a place of detention with some exceptions. Further, 2005 Act 60 provided that custodial interrogations of adult felony defendants should be recorded and admitted into evidence at trial, and that, barring good cause not to do so, the judge may instruct the jury that they may consider the absence of a recording when weighing the evidence. Squad car recordings and security camera recordings also contribute to the increased costs in this appropriation. Recordings may also entail transcription costs because of the need to present the court with an accurate record of the recorded statement, interrogation, or other conversation.

These costs associated with discovery and other items associated with a fair trial has gone up in recently years, increasing more than $1 million since 2001-02. At the same time, the state has actually set aside $13,400 less than we did 16 years ago, to pay for these costs of court transcripts, interpreters, and discovery, leading to an average deficit near $1.1 million in each of the last 2 fiscal years.

The LFB says that the State Public Defenders’ office has found money in other areas to pay for those added expenses, which is why there has been no need to ask more state tax dollars. But the LFB adds that other areas of the Office of SPD would have to give up about $2 million over the next 2 years.

The SPD has reallocated expenditures from other appropriations to fund transcripts, discovery, and interpreters since 2001-02. As indicated in the above table, the use of reallocated expenses has continued to increase over the period. While the SPD has reallocated expenditures to balance agency appropriations, these reallocations have, at least in part, resulted in less funding being available for other agency activities. Given these considerations, the [Joint Finance] Committee could provide funding based on 2015-16 expenses for transcripts, discovery, and interpreters. [Alternative A2] As a result, an additional $1,080,400 GPR annually would be provided to support payments for transcripts, discovery, and interpreters [a change of $998,600 GPR annually to the bill]. This is the amount that the SPD requested in its 2017-19 budget submission.

And you can see where this is also a problem, because we’re already $3 million short when it comes to paying for private attorneys, so where is there going to be this extra $2 million that can be reallocated to pay for these services related to discovery?



So add the Public Defender’s Office to the list of places in this house-of-cards budget where needed services are underfunded and it’s going to have to compete for increasingly limited tax dollars. No wonder why the Republicans on Joint Finance are heading back to the drawing board to figure out how they can find money to pay for Walker’s campaign gimmicks, while also trying to fix the roads and keeping state government running.

Oddly, the longer the budget deliberations go on, the worse the picture seems to get. And all of the “happy tweets” about Wisconsin’s economy and budget that come out of Walker’s taxpayer-funded propaganda offices are getting increasingly laughable and absurd in the process.