Eight named plaintiffs have filed a class action lawsuit court case against Governor Tony Evers and the Wisconsin Public Defender’s Council on August 23 for a lack of legal representation for low-income defendants in criminal cases. The plaintiffs have been in detention for long periods because they cannot afford private lawyers, but they have not yet been appointed as a public defender.
Four litigation groups, including the Wisconsin Criminal Defense Lawyers Associationfiled a lawsuit, asking the state to immediately appoint a lawyer for those in need or to dismiss the criminal charges against them.
The lawsuit cites the backlog of 35,000 statewide criminal cases as reason for prompt action. With so many cases pending, defendants who should be presumed innocent under the Fifth Amendment protections could spend months or more in detention.
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Delays in criminal trials are often the result of a shortage of public defenders. The problem stems from several causes, all of which complicate the right to benefit from legal representation.
Adam Plotkin is the Legislative Liaison Officer at the Wisconsin State Public Defender’s Office. He said the shortage comes down to two main factors: workload and compensation.
Plotkin said the pay was very low compared to the amount of work public-appointed attorneys would be expected to do. Over the past five to ten years, this imbalance has grown as the practice of law has changed and technologies such as video evidence have emerged.
Private lawyers are able to handle a manageable workload on their own. But with four defendants out of five unable To pay for a lawyer, manageable caseloads are a luxury for the lagging public defender system.
The issue of insufficient remuneration has been partially addressed in the past. In March 2021, Governor Evers signed a invoice which allows for merit-based salary increases for state public defenders. Intended to entice experienced lawyers to stay in the public sector, the bipartisan measure was a hopeful effort to resolve the shortage.
But the crisis persisted despite wage increases. Lawyers continue to look to the private sector for other benefits, such as health insurance and child care plans.
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The COVID-19 pandemic has only exacerbated crisis. The closures delayed legal proceedings, which overburdened many employees to the point of resigning. Because criminal cases in particular require more time and resources, the public defender system cannot meet demands amid nationwide labor shortages.
Clearly, this backlog creates significant challenges in granting due process rights to defendants who cannot afford private counsel. But like other aspects of the criminal justice system, these conditions do not affect all Wisconsin residents equally.
“There are significant racial disparities in the criminal justice system, and so we see that reflected in our client base,” Plotkin said. “A disproportionate number of people of color charged with crimes are eligible for a public defender.”
Complex cases of inequity in the justice system make the impacts even more pervasive for low-income defendants. Plotkin cited cash bail as another example of how socioeconomic status plays a role in a person’s experience as a defendant.
Although on paper bail gives defendants the chance to be released, many people who cannot afford to post bail have no choice but to remain in detention. Plotkin said this is a major flaw in the criminal justice system because the presumption of innocence is not applied equally across socio-economic backgrounds.
“A big mistake with cash bail is that it kind of protects public safety,” Plotkin said. “But under the cash bail system, if I’m charged with the same crime as you, but you have [financial] mean and I don’t… what makes you less risky than me? »
A similar principle applies to the public defense sector, as indigent defendants may have to wait months before being tried. Defendants who can afford to hire a private attorney immediately undergo a much faster determination of Sixth Modification of speedy trial rights.
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Ultimately, although the policies do not explicitly mandate discrimination, bias against low-income people persists, which fundamentally influences their experiences as they move through the criminal justice system.
The inequity of the public defense highlights a larger flaw in law enforcement – the justice system lacks the capacity to solve the problems it creates. In other words, the state distributes criminal charges faster than it can solve them, and the due process rights of low-income defendants suffer.
The class action is not intended to figure out how to fix this faulty system, according to WACDL attorney Hank Schultz. Instead, the plaintiffs in the lawsuit want to impose on the government the responsibility to balance the criminal charges they issue with their ability to resolve them.
In fact, the lawsuit alone represents a technical solution to a structural problem. WACDL lawyer John Birdsall stressed the government’s responsibility to resolve the crisis.
“This lawsuit is hopefully a wake-up call to build a system that actually works and actually works fairly for everyone involved,” Birdsall said. said in an interview with Wisconsin Public Radio.
If the plaintiffs win the class action, the state must consider its course of action. They would need to find the resources to appoint a long-term lawyer or deal with the consequences of dropping criminal charges – potentially leaving victims of crimes without justice.
Sufficient appointment of attorneys would require coordinated initiatives by the State of Wisconsin’s public defenders and other government entities. Many of the current efforts by the Office of the Public Defender are aimed at building support around lawyers amid the shortage. This comes in the form of paralegal assistance and temporary staff to reduce the workload placed on public defenders.
The Wisconsin State Public Defender’s Office will submit its budget request for the next biennium on September 15. Plotkin said it would be a huge request aimed at addressing recruitment and retention issues, increasing salaries, hiring support staff and easing the crisis.
“[These measures] are all geared towards this singular effort to ensure that we have sufficient resources to appoint an attorney for each person who qualifies,” Plotkin said. “If approved, the new budget could give Wisconsin’s public defense system the support it needs to better serve low-income defendants.”
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Clearly, the State Public Defender’s Office is acutely aware of the problem and is using the resources at its disposal to implement meaningful changes. But ultimately, getting the support they need to address the public defender crisis requires integrated efforts across many government sectors. Understanding the backlog as an impact of income bias is key to addressing the problem at its root.
Of course, more basic resources are needed to support an essential, albeit grossly overstretched, group of public servants. Fully resolving the public defender crisis, however, also requires a nationwide consideration of the socio-economic disparities inherent in a deeply flawed justice system.
Celia Hiorns ([email protected]) is a second-year journalism and political science student.