Monday, May 27, 2019

Wisconsin looking at paying tens of millions more due to court costs, lawyer shortages

Another topic in Tuesday's Joint Finance Committee meeting will deal with the increasing costs and shortages that are happening in the state's criminal courts, and they're happening on both the prosecution and the defense.

For the prosecutors, the state pays for salaries of assistant prosecutors at the Department of Justice, and also gives counties funds for local district attorney positions to try cases. Pay for these positions often hasn't kept up with more lucrative jobs in the private sector, and turnover has climbed in recent years as a result.


To deal with that issue, the Evers budget plans to give these prosecutors a pay raise that mirrors the increase proposed (and approved of last week by JFC) for other state employees.
Given the benefits of reducing attorney turnover, the Committee could provide funding to both the DAs, SPD, and DOJ to support salary adjustments under the pay progression plan. Funding could be provided in the manner recommended by the budget bill [Alternative 1]. This alternative is intended to provide a 2% increase in 2019-20 and another 2% increase in 2020-21. This would result in DA pay progression funding totaling $307,300 GPR in 2019-20 and $918,000 GPR in 2020-21, SPD pay progression funding totaling $320,600 GPR in 2019-20 and $956,900 GPR in 2020-21, and AAG pay progression funding totaling $70,100 GPR, $15,600 PR, and $3,500 FED in 2019-20 and $141,500 GPR, $31,600 PR, and $6,200 FED in 2020-21. Funding for pay progression would be provided on a one-time basis.
In addition to the pay raise, Evers wants another $5.5 million in the next two years to add some more prosecutors to several counties. This is intended to relieve understaffing in several places around the state, and the LFB notes a survey by the Wisconsin District Attorneys Association that says many DA offices are short by 40% or more, and that problem is particularly acute in rural areas.
New State Prosecutor Positions. Provide $1,069,500 GPR in 2019-20, $1,466,900 GPR in 2020-21, and 19.6 GPR-funded positions annually, to provide an additional ADA with an anticipated start date of October 1, 2019 to the following 20 offices: Barron, Bayfield (0.6), Brown, Dunn, Eau Claire, Forest, Jackson, La Crosse, Langlade, Lincoln, Manitowoc, Monroe, Outagamie, Ozaukee, Polk, Portage, Racine, Sawyer, Washington, and Wood.

Convert PR-Funded ADA Positions. Provide $608,200 GPR, and -$608,200 PR in 2019-20, and $632,500 GPR and -$632,500 PR in 2020-21, and 7.5 GPR positions and -7.5 PR positions annually, to convert funding for certain prosecutor positions from program revenue to general purpose revenue. The 7.5 GPR positions would include 1.0 ADA position in Fond du Lac County, 2.5 ADA positions in Marathon County, and 4.0 ADA positions in Milwaukee County. The administration indicates that funding currently supporting the positions is not available for the 2019-21 biennium.

Increase Existing Part-Time ADA Positions. Provide $820,700 GPR in 2019-20, $887,000 GPR in 2020-21, and 6.9 GPR positions annually, to increase part-time prosecutor positions in the following 14 counties: Adams (0.80), Buffalo (0.20), Burnett (0.75), Columbia (0.25), Douglas (0.50), Green Lake (0.50) Iowa (0.25), Juneau (0.50), Marinette (0.40), Pierce (0.50), Rusk (0.50), Sheboygan (0.50), Washburn (0.75), and Waupaca (0.50). Note that Buffalo has a 0.5 elected DA and a 0.5 ADA. The recommended 0.2 position in Buffalo County would be used to increase two 0.5 positions to 0.6 positions. Note that one 0.5 ADA splits time between Burnett and Washburn Counties. Under the bill, both Burnett and Washburn Counties would have a full-time ADA.
For the defense, there have been chronic shortages resulting from Wisconsin paying its public defenders an embarrassingly low amount. The $40 per hour the state pays for public defenders is the lowest in the nation, below the rate that would encourage lawyers to take these jobs, and was the subject of a petition brought to the State Supreme Court last year demanding it be significantly raised. And because counties can't hire public defenders at that rate, Public Defender's office is often forced to turn to private attorneys to take some cases. Those private attorneys get paid $70 an hour, but even that doesn't seem to be enough.
On the surface, Wisconsin seems to have a decent system, compared to some states. The State Public Defender represents indigent criminal defendants from its 35 offices. But it also pays private lawyers more than $2 million a month to handle conflicts and overflow — about 40% of all eligible defendants.

The number of private lawyers who took cases shrank from about 1,100 in 2012 to about 920 last year, according to Kelli Thompson, director of the State Public Defender program. There are currently 935 lawyers certified to take assignments.

The impact is sharply accentuated in rural areas. Thompson reports the SPD often has to call dozens, and in a few cases, hundreds of lawyers to find one who'll take a case, and it might be one whose office is several counties away.
This situation led the Wisconsin Supreme Court to require that the rate for private attorneys be raised from $70 to $100 an hour, with the SCOWIS adding "[the argument that] Wisconsin's compensation rate for SPD appointed attorneys is abysmally low is not in dispute." It has grown so desperate in rural areas that six defendants in Ashland and Bayfield Counties filed a federal lawsuit in January claiming that their rights were being violated because they could not get a lawyer appointed for them for weeks.

The low pay for court-appointed defendants also causes a strain on county budgets, as they often have to make up the difference between what the state will pay for these lawyers, and what these lawyers demand for compensation. With these issues and cost crunches in mind, the Evers budget asks for an increase in what the state will pick up for cases that a private attorney is asked to take on.
In the budget in brief, the administration stated that "at $40 per hour, Wisconsin has the lowest reimbursement rate for private bar attorneys that represent indigent criminal defendants. Under our system of due process, everyone has a constitutional right to legal representation yet the low reimbursement rate has caused major concerns as to whether all Wisconsinites are being properly represented." The bill recommends providing $8,668,900 in 2019-20 and $16,612,700 in 2020-21 to fund a private bar rate increase from $40 to $70 per hour beginning January 1, 2020. January 1, 2020, is the same day the court appointed counsel rate (discussed above) as set by Supreme Court rule will increase from $70 to $100 per hour.
And that extra $25.3 million doesn't even account for the $362,600 that we all already falling short on for these costs at the paltry $40 an hour rate. This is something the Evers budget is accounting for, while Walker and WisGOP never did so other than shifting around money from other sources.

Of course, there's one other option out there that might help to deal with these shortages in Wisconsin's court system. TRYING TO HAVE FEWER PEOPLE IN COURT IN THE FIRST PLACE, through decriminalizing certain offenses (like marijuana possession) and better policies that work to prevent the cycle of poverty and criminality that seems especially true in Wisconsin.

But since we have a Wisconsin GOP that is predicated on outdated "lock em up" policies and economic apartheid, don't count on that to be discussed much. So instead we have these shortages and needs to pay more tax dollars to deal with these costs after the crimes happen.

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