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Constitutional rights jeopardized by Wisconsin's public defender shortage

"It’s a major crisis in our legal system"
Posted: 7:34 AM, May 05, 2022
Updated: 2022-05-06 10:10:16-04
Milwaukee County Courthouse

MILWAUKEE — Each day, there are hundreds of people sitting in Milwaukee County jail cells without legal representation, according to the State Public Defender’s Office in Milwaukee.

“It’s in that 200 plus category,” Tom Reed, Regional Attorney Manager and Milwaukee Trial Assistant State Public Defender said. “We have a couple hundred cases every day that I see as, what I call, sort of delinquent appointments. We don’t have enough lawyers to handle the cases that need appointment.”

Delinquent Cases

Reed has served in the Public Defender’s Office for his entire career, spanning nearly four decades. Over time, he says the profession has taken many hits and it’s a struggle to get new lawyers in the doors.

“For years, we had an average length of service of over 12 years,” Reed said. “Which meant, we were keeping people. Frankly, television and movies tend to give people a very distorted idea of how our legal system works. I suspect a whole generation of lawyers who saw Raymond Burr as Perry Mason and thought this is an honorable profession. Then they see Judge Judy and they don’t perceive it in the same way.”

That honorable profession, according to Reed, is upholding constitutional rights. Right now, that basic human right is being jeopardized by the pandemic. According to Reed, jury trials paused for about six months at the beginning of the pandemic and "very little got done." He says courts had the capacity to hear motions and some other proceedings, but not much else until late in 2020 and early 2021. But it’s not just an inconvenience. It’s a civil rights problem.

“It’s unquestionably a constitutional problem and a social justice problem,” Reed said. “We have thousands of cases every year. If you functionally don’t have much movement on thousands of cases, you are creating a backlog. It’s a major crisis in our legal system.”

Constitutional Questions

Every person who is charged with a crime is considered innocent until proven guilty by a court of law. In order for the integrity of the justice system to stand strong, Reed says defendants’ representation is vital.

“There are so many things that need to happen for that person so their constitutional rights are protected,” Reed said. “Frankly, for the system to have legitimacy we want it to have, it should be appointed almost right away. We have to count on our criminal justice system to work. We have to believe, when someone is charged with a crime, we’re going to go about it the right way. This is not an acceptable situation we have.”

At present, Reed estimates those so-called ‘delinquent cases’ have people waiting between 20 and 30 days for their lawyer to be appointed. That means a person who is arrested and charged with a crime has to wait between three and four weeks in jail before they have a legal representative.

While Reed says his office is assigning lawyers to defendants, the I-Team discovered there are dozens waiting longer than two to three weeks. According to current inmate records, there were at least nine people who waited 60 days or more for their appointment, four people who waited 70 days or more, and two who waited over 80 days.

“It makes my stomach hurt,” Reed said. “Honestly. It is hard to imagine being charged with a criminal offense, being in custody for that length of time and not being able to sit down with a lawyer and discuss the various questions you would inevitably have.”

Reed says they have about 55 to 60 Public Defenders in his office. Typically, there are cases his office can’t handle for conflicts of interest. Those cases then go to a team of private bar attorneys. However, due to the pandemic, the number of private bar attorneys who accept these cases is dwindling.

“I have a staff of attorneys here who do about 60 percent of our cases and the rest go to private bar attorneys,” Reed said. “We have about 35 percent fewer private bar attorneys today than we did before the pandemic.”

Those attorneys largely turn down the work because of their own caseload and pay, according to Reed. He says private bar attorneys, for county cases, make about $70 per hour. While that sounds like a significant amount of money, it’s not enough, according to Reed.

“They have to pay out all of their costs from that,” Reed said. “There are lawyers who tell us it’s not enough to do the work. For about 30 years or longer, it was $40 per hour. We were the lowest state in the country for private bar compensation. Four years ago, they moved it up to $70.”

While Milwaukee County shoulders the bulk of ‘delinquent cases,’ it only represents about 15 percent of the state’s backlog, according to the State Public Defender’s Office in Madison.

“That’s a significant issue,” Adam Plotkin, the Legislative Liaison for the State Public Defender’s Office said. “The impact of a person sitting in custody, waiting for their case to move through the system can not be understated. There are constitutional implications. There are liberty implications. It’s not just the delay for our client or perspective client. It’s for the victim in the case and the community in general.”

Plotkin points out, a vast majority of cases across the state are being fulfilled within 10 days. However, he estimates, there are roughly 35,000 backlogged cases, 20,000 of which are those who qualify for public defender services.

“If people are sitting in custody, it’s not good for them,” Plotkin said. “It’s not good for their families and frankly, not good for our communities. We have pretty concrete data that shows the longer someone sits in custody, the higher recidivism rates there are in the future.”

Statistics show there is a disparate impact to African Americans. While there is not a definitive breakdown of the makeup of these defendants across the state, data from the Sentencing Project shows a majority of prison inmates are African American. Wisconsin has the second largest disparity between Black and white inmates. For every white inmate in the state, there are 11.9 African Americans incarcerated.

Pair that with the economic disparities in the state as well. In order to qualify for a public defender, a defendant needs to have an annual household income under 115 percent of the Federal Poverty Line from 2011.

Wisconsin is the worst state as it pertains to racial income gaps, with the median African American Household Income at just 48 cents to every white dollar in the state. It’s even worse in Milwaukee, according to the State of Black Milwaukee by the University of Wisconsin - Milwaukee, at 42 cents per white dollar.

“Wisconsin leads the nation and unfortunately, our nation leads the world,” Plotkin said. “Wisconsin’s disparity rates in the criminal legal system are more or less the worst in the world.”

“This is a crisis,” Janine Geske, former State Supreme Court Justice said. “It’s a crisis for the court system and it’s all hands on deck to try to find a way to make it move smoothly and give quality trials to all parties involved.”

Integrity in Justice System

Geske is a distinguished professor of law at Marquette University. She is teaching the next generation of lawyers, who will be heading into the field to take on this backlog. Her concerns include the handling of homicide cases. She says, presently, there are 180 people charged with homicide who are awaiting trial.

“That’s an enormous number,” Geske said.

Geske sat as a circuit court judge in the 1990s, the last time Milwaukee County saw record breaking homicides before the pandemic spike of the last two years. During her time, they created a system to process homicide cases in 90 days.

“The idea was, between the time of the arrest and the time of the trial was 90 days,” Geske said. “We didn’t always make it but for a while there, it took years. That doesn’t provide justice for anyone.”

In comparing her time in Milwaukee County to today, she says it’s an entirely different problem.

“It wasn’t a shortage of lawyers,” Geske said. “Underpaying them and building the stress on them so that we don’t have enough, either in the public defender’s office or private counsel willing to take the cases. It’s going to take more money and more bodies for a while to even it out.”

Timeline on Getting Back to Normal

Relief is in the works. Governor Tony Evers dumped $30 million into the state’s court systems to help with this backlog, with $14 million of that allotted to the Milwaukee County Court System. However, Plotkin says it could take two to three years before things level off, and even longer for Milwaukee County since it has more cases to deal with.

But, to Reed, this is only temporary.

“It’s a bridge,” Reed said. “While they’re not permanent positions, it might get us to a better place and to show, structurally, we need additional investment in our criminal justice system to avoid this ever happening again.”

“If you don’t have enough bodies to be able to do serious training and mentoring and have someone to check with when handling a serious felony, it’s not going to work,” Geske said. “People are afraid to even enter into that. I think there are a lot of private lawyers willing to do it, even for less pay, but only if they get enough support at doing the work.”

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