Wisconsin Criminal Justice Study Commission
Summary of Commission meeting held on 5/29/08 at State Bar Center in Madison.
Commission Members present: Mike Malmstadt (chairman), Gerry Mowris, Greg Weber, Dan
Blinka, Emily Mueller, Kelli Thompson, Penny Beerntsen, Roy Korte, Bob Donohoo, Jerry
Buting, Michael O’Hear, Scott Horne, Steve Glynn, Suzanne O’Neill, Ginny VandenBranden,
Mike Koll
Not present: Fred Fleishauer, Ken Hammond, Keith Findley, Michael Smith, Noble Wray, Chad
LaLor, Judy Schwaemle, John Charewicz, Enrique Figueroa, Bill Grosshans, Gary Luhman
Staffed by: Byron Lichstein
The meeting began with Lichstein introducing two new citizen representatives, Mike Koll and
Ginny VandenBranden (2).
Presentation by Megan Christiansen
Next, the Commission heard a presentation by Megan Christiansen, the Budget Director for the
Wisconsin State Public Defender (2).
Christiansen described the history and structure of the State Public Defender (SPD) (2-3). She
said the SPD contracts with approximately 1,100 private bar attorneys around the State. These
attorneys handle cases that the in-house SPD attorneys can’t handle either because of conflicts or
overflow (3).
She discussed the problem of unreasonably low eligibility limits for qualifying for a public
defender (3). The eligibility standards haven’t been updated since 1986, and they’re now
woefully low (3), despite the SPD’s efforts to convince the legislature to raise the limits.
Christiansen discussed the specifics of the SPD’s budget and its caseload (4-5). She said that last
year the SPD appointed about 47% (67,000) of its total cases to private bar attorneys. She
described the number appointed on a contract basis versus a per case basis.
She discussed the number of private bar attorneys that have been disciplined by OLR (Office of
Lawyer Regulation) (5). She said that less than 10% of WI attorneys took SPD cases in 2005;
however, out of the 205 attorneys disciplined in 2005, 58% were or recently had been on the
SPD’s private bar list (6). She said that, since the SPD increased its use of computers to monitor
bills, they’ve caught more errors and removed fewer private bar attorneys from their appointment
list (6).
Christiansen discussed the SPD’s efforts to raise the private bar pay rate (6-7). She said the SPD
has made extensive efforts, including trying to mobilize the private bar to advocate for itself, but
that the primary barrier is money—the pricetag for raising the rate from $40-$70 an hour would
be $16-$17 million per year (7).
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Christiansen said the SPD would not support the creation of a separate assigned counsel agency,
because it would cost more money due to funding separate administrative staff and expenses that
are currently handled by the SPD’s administrative budget (7).
Christiansen said the greatest barriers to continuing high quality representation are the low pay
rate for assigned counsel and high caseloads for staff SPD attorneys (8). She discussed efforts the
SPD is making to involve itself in the community (8).
Christiansen then took questions from the Commission members (9). In response to a question
from Malmstadt, she said that the Director of State Courts puts out a report each year about the
number of county appointments in cases where someone doesn’t qualify for the SPD (9).
Christiansen said she questions the accuracy of the data the counties report.
Buting said he wonders whether the SPD has a conflict of interest in lobbying for a private bar
rate increase (10). He noted that the SPD tells the legislature that it’s cheaper to handle cases inhouse, and therefore the legislature will naturally commit money to increasing in-house capacity,
not private bar pay rate (10). Buting also noted that, although the private bar handles 47% of the
SPD’s cases, it only accounts for less than a third of the SPD’s budget (10). Thompson said that
the most serious cases tend to stay in-house (10). She also said that the Department of
Administration often asks the SPD about the possibility of cutting the number of private bar
cases and increasing the SPD staff in order to save money (since it’s cheaper to handle a case inhouse), but the SPD always says no because they don’t believe the legislature will create the new
positions (10-11).
Buting said it seems like the SPD would want to allow the private bar appointments to become a
separate agency because it would remove a headache for the SPD (11). He said it would make
more sense to have the private bar as a separate entity lobbying for its own budget (12).
Thompson said a separate agency would not be a good idea because it would mean duplicating
the administrative function and would therefore be more costly (12).
The members discussed the difference between appointed attorneys who take multiple cases
based on a flat fee contract and attorneys who take cases one-by-one and are paid by the hour
(12-16).
The Commission then heard a presentation from Dean Strang, an attorney at Hurley, Burish, and
Milliken, and the former head of the Wisconsin Federal Defender’s Office (19-20).
Strang began by explaining the structure of Wisconsin’s federal defender system (20). He then
said that any comparison of WI’s system to the federal system should begin with understanding
some important dissimilarities, such as the fact that the percentage of the court system’s budget
devoted to indigent defense is almost four times higher in the state system than in the federal
system (21). He said another critical difference is volume: the total number of indigent
defendants charged per year in WI federal courts is 550-750, while in state court the number is
about 142,000 (21).
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Strang said the rate of compensation for assigned counsel in federal court is $100 per hour for
regular cases and $163 per hour for capital cases (22). The federal rates are also subject to caps,
unlike the state rates, although the federal caps are not mandatory (22).
After noting these dissimilarities between the State and federal systems, Strang then offered
several thoughts on how the federal system for indigent defense might serve as a model for the
state system. First, he suggested that the state system should provide indigent defense earlier, as
the federal system does, at the time someone becomes the subject of law enforcement interest
(22). Strang said this protects the innocent and saves money by keeping meritless cases out of the
system. It also makes bail hearings more meaningful because the attorney is able to adequately
advocate for appropriate bail, unlike in the state system where the attorney often knows nothing
about the client or his/her case (23).
Second, Strang suggested indexing private bar compensation rates based on some other
institution—in the federal system, compensation rates for indigent defense are indexed to the
Consumer Price Index (23-24).
Third, Strang suggested strengthening peer review of assigned counsel (24). The federal courts’
eastern district of Wisconsin has a standing committee made up of people who take private bar
appointments. The committee members are appointed by the judges and make recommendations
to the judges about which lawyers should be allowed to take federal appointments in that district
(25).
Next, Strang suggested finding a way to make prosecutors and judges internalize the costs of
prosecuting the poor (25-26), because the need for indigent defense would be reduced if fewer
indigent people were charged with relatively minor crimes. He said that the current $40 per hour
rate makes it impossible for an attorney to make a living taking only public defender cases (26).
He said that he used to be part of a two-person firm with an office and a secretary. The firm’s
costs on only overhead were $48 per hour (26). At his current firm, which is more high-end, the
overhead only is $163 per hour (26). Strang said that at $40 per hour, the quality of the lawyer’s
performance drops dramatically.
The members discussed how the prosecutors’ current system for counting cases actually
encourages more charging, because funding is contingent on the number of cases (26-30).
Strang next suggested expanding the availability of attorneys post-conviction, in order to deal
with viable claims of innocence (30).
Last, Strang said that the eligibility standard in Wisconsin is unconscionably low (31). He said
that the standard in federal court is essentially whether the defendant says he can afford to hire a
lawyer, and he said a system that charges mostly the poor should build in defending the poor as a
fixed cost (31).
The Commission then heard a presentation from Lindy Frolich, the head of Colorado’s
“Alternate Defense Counsel,” a separate governmental entity created in Colorado to handle
assigned counsel cases (33).
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Frolich began by saying WI is lucky to have a statewide system (33). But she also said that she
believes strongly in having a separate agency to handle conflict cases (33).
Frolich then discussed the history of CO’s public defender system (33). She said that the CO
SPD is allowed to appoint cases only for conflicts, not overflow (34). She said that until 1995
CO’s system was similar to WI’s, except that assigned counsel appointments were handled by
the court rather than the SPD (34). That system prompted concerns because the courts were
making appointments arbitrarily. The first remedy suggested was to have the SPD handle the
appointments, but that approach was not adopted because there was concern among legislators,
judges, and prosecutors that it would be a conflict for the SPD to handle appointments for cases
on which they had a conflict (34-35). Frolich said that WI’s system leaves open the possibility of
litigation over the fact that the same office that has the conflict is the office that arranges the
appointment (35). As an alternative, the legislature created the Office of the Alternate Defense
Counsel as a separate government agency to handle appointments (35). Frolich described how
the SPD’s budget was shifted to her agency when her agency was created (36). She described the
changes in her agency’s budget over the years (36).
Frolich discussed the number of full-time employees and contractors her agency has (37).
Frolich said that her office began having paralegals handle the paperwork involved in beginning
an appeal—this saved a lot of money and headaches because the attorneys who had been doing it
would not do it properly (38). Weber said that he thought that idea might be good for Wisconsin,
because it might eliminate the large amount of litigation over attorneys’ failure to properly
initiate appeals (39).
Frolich said CO is creating a “brief bank,” a collection of legal pleadings on various issues that
different attorneys can access (39). Weber said prosecutors in WI have such a brief bank, and it
would be a good resource for defense attorneys to create something similar.
Frolich discussed the process for how her agency and the courts choose a specific attorney to
appoint to a case (40-41).
Frolich said CO has caps on assigned counsel payments, but they’re able to go over the caps for
good reason (41).
Frolich discussed CO’s hourly rates for assigned counsel (42). Since 2003, Frolich’s office has
gone from $47 to $65 per hour (42). Frolich said she’s shocked that WI’s pool of assigned
counsel attorneys is 1,100—in CO the pool is 400, and Frolich turns people down frequently.
She said that if she had 1,100 she would be concerned about the quality of the attorneys (43).
Frolich described the lobbying strategy that succeeded in obtaining a rate raise (43-45). The
strategy included statistical comparisons with how much money other government officials make
per hour, comparisons to rates in other jurisdictions, and anecdotes about lawyers who would be
unwilling to take appointments at the lower rate (43). Frolich said the increase from $47 to $65
per hour has made a dramatic difference in the quality of the attorneys.
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Frolich said the CO SPD’s budget is $46-50 million for 90,000 cases (45). She said the SPD is
far more efficient than her agency, and therefore she would recommend that the WI SPD keep
more cases in house rather than appointing such a high percentage (45).
Frolich said that her agency is under the judicial branch, while the WI SPD is under the
executive branch (46). The members discussed the difficulties posed by the WI SPD having to
deal with the Dept of Administration (46). Frolich’s agency takes its budget straight to the joint
finance committee of the legislature rather than having to first deal with an executive branch
intermediary (47).
Frolich discussed certification requirements and CO’s eligibility standard (48).
Frolich said having the Alternate Defense Counsel has made the private bar a more cohesive
lobbying force (49). She also said that they have partnered with GAL attorneys on funding
issues, which has been helpful because of the stories GALs can tell to funding entities (49).
Frolich said her agency enters into 3-year contracts with all its lawyers, and they evaluate each
lawyer before renewing the contract, thus providing quality control (49).
Frolich ended by describing a court case in which the CO Supreme Court said that courts lacked
the authority to appoint defense counsel outside the system run by Frolich’s agency (50).
Frolich then took questions from the Commission members (50).
She discussed the demographics of Colorado as compared to WI (50). She answered a question
about how the CO SPD determines that a conflict exists such that the case can be sent to
Frolich’s agency (52-53). Frolich said she doesn’t think the SPD is sending cases to her
inappropriately, even though that might benefit the SPD’s budget. Frolich said her agency has
typically supported the SPD’s budget requests (53). She said CO has had good budget years
recently, which has meant both the SPD and her agency have gotten the increases they need (53).
Malmstadt said someone should study the difference in outcomes between SPD staff attorneys
and assigned counsel (55). Buting said such data could potentially be used to support class action
litigation on behalf of the 47% of indigent defendants represented by assigned counsel (55).
The members discussed WI’s $40/hour rate (56). It equates to $10/hour in 1981 dollars. It would
be $117/hour if indexed to the CPI (56).
O’Hear asked if CO has empirical data to demonstrate that the quality of representation has
improved because of the rate raise (57). Frolich said it’s only anecdotal data.
Weber suggested that one way of improving the quality of indigent defense is improving the
quality of investigators and expert witnesses available to attorneys for the indigent (57). He
suggested a centralized way to ensure high quality investigators and experts. Frolich agreed with
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the principle of ensuring higher quality experts and investigators, but she expressed doubt about
whether her agency could dictate to the attorneys which experts and investigators they use (58).
O’Hear suggested that one way to quantify changes in the quality of assigned counsel in the state
system would be to track the number of attorneys on both the state and federal assigned counsel
lists. As the number on both lists increases, that likely indicates better quality in the state system
(58).
Buting said that the SPD could consider strengthening its certification requirements so that
recent graduates would not be able to take appointments (59-61). If the SPD did so, this could
create a crisis—no lawyers for the indigent—and the legislature would then be forced to address
the problem. Thompson said the SPD has considered creating a crisis but has decided not to
because the clients would suffer (59). They would sit in jail without attorneys.
Thompson said that the SPD’s requests for increasing the $40 rate have frequently been
supported by prosecutors, judges, and the counties’ association (61). However, it hasn’t been
enough because there are other budget priorities more important to the legislature.
Blinka suggested the possibility that the SPD could become part of the judiciary, rather than the
executive, as is the case in CO (62). Weber said this could create conflict for judges and public
defenders seeking the same money (63).
Malmstadt said that the decision of who is eligible for a public defender should be a judicial
decision, not a legislative decision (63). He said we may have reached a point where the
judiciary needs to step in and take action.
Thompson said that at one point the SPD had a group of judges actively lobbying on their behalf,
and these judges were told by the legislature that it could harm their own funding if they
continued lobbying for the SPD (64).
Buting suggested that even if it wouldn’t be possible to move the SPD to the judicial branch, it
might be possible to petition the WI Supreme Court to do something to remedy the assigned
counsel situation (64). He said the petition could argue that the current system is a conflict (64).
Donohoo said that petitions to the Supreme Court usually address much narrower issues (65).
Thompson said there’s a question about how the SPD should prioritize its issues (65). She said
they’ve had more luck with eligibility than with raising the private bar rate.
Donohoo said that one important question is whether the judges are exercising their authority to
appoint an attorney at county expense in cases where the defendant doesn’t meet the very low
state eligibility standards (66). He said the legislature’s response to the eligibility issue might be
that the judges need to be appointing at county expense (66-67).
Buting said the judges could put pressure on their county executives by appointing more
frequently (67). This would cause the county executives to pressure the legislature to change the
guidelines so that the State would pay more of the cost of indigent defense.
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Malmstadt said we may have reached the point where we can’t trust the legislature to adequately
fund indigent defense, and therefore the judiciary needs to take up the issue (68). Weber said that
one option would be the WI Supreme Court’s superintending authority (68). He noted that the
Court had exercised that authority recently to require recording of juvenile interrogations.
Strang said that in the federal system indigent defense is part of the judiciary’s budget, and that it
works well because funding for the defense is more likely to be adequate when judges are the
main ones advocating for it (70).
The members discussed whether the current eligibility system violates the Constitution (71).
Donohoo suggested it may not because it does not prevent judges in individual cases from
appointing a lawyer aside from the state eligibility guidelines (71). However, Strang said that the
Constitutional issue comes in because, when you shift the funding to the counties, different
counties have different tax bases, so there will be critical differences between the counties (71).
Malmstadt said that, because most efforts to lobby the legislature and executive have failed, the
Commission should look at how to get the judiciary to act (71). The judiciary could be prompted
to act either through litigation or through pressure behind the scenes (71). He said he thinks
there’s more likelihood that the judiciary would act on eligibility rather than on the assigned
counsel pay rate (72).
Frolich asked about the WI Supreme Court’s $70 rate (74). Buting said that the $70/hour rate is
for GALs and other similar cases, but that many of the counties ignore it. Frolich said the fact
that people in the system are ignoring a rate set by the Court could be a powerful argument to the
Court that it should take stronger action.
Thompson then summarized her and Lichstein’s meeting with John Voelker, the Director of
State Courts (76). Voelker’s office had considered advertising on CCAP, but decided against it
because they did not want the judiciary to appear to be endorsing certain products or services
(76). They had also considered a CCAP user fee but there was immediate strong resistance from
various groups (76). Even if they succeeded in raising this money the legislature could easily
take it for something else, not the courts (77).
The members discussed how much it would cost to raise eligibility standards and assigned
counsel pay rates (78). The total amount would be around $25 million, which is a small fraction
of the overall $29 billion budget.
Thompson said the price tag has always been the stumbling block for raising the private bar rate
(80). Buting asked why other states have been able to get their rates raised.
O’Hear said the Commission should consider what action it could take on this issue, and
Malmstadt further explained his idea of instigating the judiciary to take action (83). He said the
two law schools and the State Bar should find a way to approach the WI Supreme Court and
gauge their openness to taking action (83). The members discussed the possibility of a lawsuit
and who the litigants would be (84). Blinka suggested the Legal Aid Society as a possibility.
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Buting suggested the National Association of Criminal Defense Lawyers as another option (84).
Weber said that before any discussion of the Commission participating in litigation, he would
have to talk to the Attorney General (85). The members then agreed the Commission would not
be able to be a litigant in any lawsuit (85), although Buting said individual members without the
Commission’s sanction could discuss possible litigation with outside groups. Mowris suggested
that the Commission could issue a report summarizing the problems, and the report could broach
the possibility of the WI Supreme Court using its supervisory powers (85). Buting said the
Commission or some of its sponsors could file a petition with the Court.
Donohoo asked whether the Commission has enough evidence that the $40/hour rate is
inadequate (87). The members discussed various evidence, including the SPD’s survey of why
certain attorneys stopped taking SPD appointments.
Christiansen said the SPD did a study of how many more people they’d be representing if they
raised eligibility guidelines (87).
The members discussed how the Commission should coordinate with the State Bar’s new
committee on the private bar rate (88).
The members discussed the possibility of supporting the SPD’s next budget request (90).
The members discussed the Dept of Administration’s budget cuts to the SPD (92).
Korte said prosecutors are facing serious funding issues as well, and that the different factions of
the criminal justice system should try to coordinate their push to the legislature to repair the
funding crisis (92).
The meeting was adjourned (93).
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