Even poor make too much for public defender

2010-01-25T06:00:00Z Even poor make too much for public defenderSTEVEN ELBOW | The Capital Times | selbow@madison.com madison.com

So you’re scraping by on minimum wage, and your hours were cut to 25 per week. You managed to put $300 in the bank, and you drive a beater you bought for $2,000. That puts you in the federal poverty bracket. But according to the state public defender, if you’re arrested, you won’t qualify for a public defender. If your boss cuts your hours to nine, you still wouldn’t qualify.

State Public Defender Nicholas Chiarkas calls the standards used to assess whether the poor can qualify for assistance from his office “an embarrassment.” They haven’t been updated or adjusted for inflation since 1987 and are the most stringent in the nation, he says. You have to be dirt poor to qualify.

Further, the standards force cash-strapped counties to foot the bill for appointing lawyers for defendants who would undergo substantial hardship if they were forced to pay for their own legal representation. The state’s Legislative Fiscal Bureau found that statewide, Wisconsin counties shelled out about $6 million in 2008 — the most recent figures available — to hire attorneys for the poor.

Pending legislation in both the state Senate and the Assembly would expand the eligibility criteria so that a single person who earns less than 115 percent of the federal poverty level, or $259.50 per week, would qualify. Those are the same criteria for the Wisconsin Works program, which provides aid and employment support to the poor.

A similar proposal for public defender eligibility was included in the 2010-11 state budget, but facing a severe budget shortfall, Gov. Jim Doyle vetoed the measure.

Now the prospects for the bill are looking better, according to its lead sponsor in the Assembly. The legislative Joint Finance Committee overwhelmingly passed the measure on Jan. 14, clearing the way for votes before the Senate and Assembly.

The Assembly vote is scheduled for Tuesday.

“We polled our members and we had votes to spare,” says Rep. Gary Sherman, D-Port Wing.

A Senate vote will follow, and Sherman thinks it will pass there as well.

Doyle’s office didn’t return a call asking whether he’d reconsider the proposal, but Sherman says the governor likely will sign it because the budgetary effects have been put off until the next biennium, when perhaps the state will have dug out of its current fiscal crisis.

The Legislative Fiscal Bureau estimates that the proposed expansion of public defender eligibility would add about 12,800 cases to the public defender’s docket, an increase of about 10 percent. The agency estimates the expansion would cost $4.1 million a year when fully implemented, but much, if not all, of those costs would be offset for taxpayers by reductions in county spending for attorneys. And more savings would be generated by fewer delays because courts would not have to hold hearings to determine which defendants qualify for a county-appointed attorney.

“What this amounts to, to a large extent, is property tax relief,” Sherman says.

Sherman, an attorney, says the added public defender staff provided for in the bill would increase the percentage of cases handled by staff attorneys. The system was designed to allow the state public defender’s staff to handle 75 percent of indigent cases, with the remaining 25 percent being assigned to private attorneys. But because that office hasn’t been able to hire staff, 45 percent of cases are now handled in the private sector.

Sherman says the bill should also allow the office to pay those private attorneys more. Currently they make $40 per hour. Sherman, who in recent years has stopped taking cases for the public defender’s office, says the current fee doesn’t even begin to cover the costs for attorneys.

“Last time I checked, my out-of-pocket cost was about twice that,” he says.

And because the state is obligated by law to make sure that indigent defendants are adequately represented, Sherman believes the legislation may also stave off lawsuits from groups such as the American Civil Liberties Union. “I think we’re vulnerable to constitutional attacks.”

At an Oct. 6 public hearing on the bill, Chiarkas said the current system cheats the poor out of adequate legal representation. While counties have a constitutional obligation to ensure that defendants have adequate representation, the eligibility standards for court-appointed lawyers vary greatly between different courts and different counties, Chiarkas argued. “This legislation would provide equal protection for all our citizens, not just those who can afford a lawyer.”

In Dane County, Clerk of Courts Carlo Esqueda says the county program works well — at least in terms of saving the county money. In 2004, before the program was in effect, the county paid $310,503 for court-appointed counsel. But since the inception of the Criminal Defense Project, those costs have plummeted — to about $16,000 in 2008 — because the system pays attorneys a pre-determined fee, and defendants are required to pay the money back.

“It’s a means by which the county can save money on these appointments,” Esqueda says.

But attorneys aren’t exactly enamored with the program.

“I signed up for it, but I don’t know how long I’ll continue to do it,” says Michael Short, one of a dozen local attorneys who participate.

Short says the county program can be a financial bust. For instance, he is currently representing a man who was charged with repeated sexual assault of a child. At the time he was charged, the defendant had no job and few assets. But he still didn’t qualify for a public defender.

Another wrinkle in the case: Short says his client didn’t do it. He’s confident the case will be dismissed.

But Short’s services will cost the client $700, which he’ll be required to pay in installments. Because Short spent dozens of hours on the case, however, the $700 the county paid him doesn’t even begin to cover his time.

“I think for misdemeanors and low-level felonies, the court appointment system works real well,” Short says. But for more serious felonies and financial crimes, which require a substantial investment in time, “it doesn’t work at all.”

Defense attorney Eric Schulenburg, a former public defender, agrees.

“We did it for two years, and for us it was a terrible economic burden and unfair to defense counsels, so we got out of it,” says Schulenburg, who has a practice with his son in downtown Madison.

He says after tallying the workload, he found that one case earned him less than $2 an hour.

Esqueda says that even though the county has been able to contain costs, he still supports the legislation to expand public defender eligibility, in part because it still costs the county money in staff time to process applications for a court-appointed attorney.

More importantly, Esqueda says the proposed changes would improve case flow because many defendants would only have to complete a single application process. Currently, defendants have to go through the state public defender process and miss the cutoff before they can apply for an attorney through a county.

Then there’s the matter of the inequity within the current system, which Short says punishes those who have little, and rewards only those who have nothing.

“My biggest concern is that people who really can’t afford an attorney aren’t being represented by the public defender’s office, the working poor,” Short says. “My concern is not so much me not being paid, it’s that there’s a whole group of people out there that because they’re making an effort to better their lives and something comes up, they’re not getting an attorney they probably deserve.”

Copyright 2015 madison.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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