Wisconsin is one of the worst states in the nation when it comes to paying for attorneys for the indigent.
David Cole wrote No Equal Justice 10 years ago, drawing heavily upon Anthony Lewis’s seminal 1964 book Gideon’s Trumpet to highlight some of the many ways in which the non-rich and non-white are denied the protections all criminal defendants are supposed to be guaranteed.
Clarence Earl Gideon was a penniless drifter who was accused of robbing a pool hall in Florida and was easily convicted because he couldn’t afford to hire a lawyer. Gideon appealed to the U.S. Supreme Court for the right to representation, and the justices ruled in his favor in 1963.
When I read Cole’s book in 1999 in order to review it for the Progressive, I remember thinking how lucky we are that we live in Wisconsin instead of the Deep South. Because down there, I wrote in the review, “Legislators prove their tough-on-crime credentials by starving public defenders of resources.”
I went on.
"’The poor person facing criminal charges,’ Cole notes, ‘not only has no choice in the matter but has no right to be represented by a lawyer experienced in his kind of case, in criminal law generally, or even in trial work. For all practical purposes, he has only the right to be represented by an individual admitted to the bar. Too often, assistance of counsel for the poor can be like getting brain surgery from a podiatrist.’"
Wasn’t I adorable back then? It turns out that Wisconsin’s $40 per hour reimbursement for public defense attorneys is now one of the lowest in the nation. The rate had been $35 an hour since 1978 before it was increased to $50 in 1993. It was cut back to $40 two years later, when the momentary success of Newt Gingrich’s “Contract with America ” was destroying sensible public policy everywhere.
The $40 an hour is not simply an hourly wage for the attorney, but a fee that also has to cover overhead like rent and electricity, pay law clerks and receptionists, and so on. When the average hourly rate for a Wisconsin attorney is $188, $40 is a public service that most lawyers say they cannot afford to perform.
A fiscal item like this ought to be part of the state budget, but it isn’t. Assembly Representative Fred Kessler of Milwaukee has a bill to increase the rate to $70 per hour to bring it closer to what attorneys in o the r states get, but legislative Republicans are, characteristically, grandstanding on the issue. By balking at the increase not only do they get to pretend to be guardians of taxpayer dollars, but the y also have many opportunities to take pot shots at criminal defense attorneys.
Deborah M. Smith, head of the division that assigns attorneys for the State Public Defenders office, says the low rate means podiatrists are operating on more and more brain tumors in Wisconsin ’s courtrooms.
Smith told the Assembly’s Committee on Judiciary and Ethics she has removed attorneys from assignments because of “uncontrolled substance abuse.” At least one other attorney, she said, was removed this year by a judge because he became “mentally unstable.”
“I know there are lawyers on our list who are not providing appropriate representation,” Smith said.
If we lived in a different kind of world, the se heart-wrenching examples of our failure to grant people the ir basic rights would serve as wake-up calls the same way Gideon’s Trumpet did 45 years ago. Instead, Gideon now looks like the high-water mark. We didn’t have talk radio and Bill O’Reilly back then, and Democrats didn’t spend most of their waking hours quaking in fear of the lurid images that might appear on mass mailed oversized postcards during their re-election campaigns.
The odds were stacked against Clarence Gideon in Florida in the early ‘60s, but he somehow prevailed. He wouldn’t have a chance in Wisconsin today.
June 30, 2009
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Dustin Beilke is a FightingBob.com contributing editor who lives in Madison.