Pleading the Sixth: On June 27, 2018, the Supreme Court of Wisconsin ordered the compensation paid by counties to assigned counsel appointed by the courts raised from $70/hour to $100/hour beginning in January 2020, while the compensation paid by the state to private attorneys assigned by the Wisconsin State Public Defender remains at $40/hour or an even lower fixed contract amount. The 6AC explains just what it is that the Wisconsin Court accomplished with the new order. Then we explain why the courts in nine other states should consider altogether getting out of the business of setting the compensation paid to attorneys who represent indigent defendants, as suggested in the dissent to the Wisconsin order, and discuss what the courts and legislatures can do instead.
On June 27, 2018, the Supreme Court of Wisconsin ordered the compensation paid by counties to assigned counsel appointed by the courts to be raised from $70/hour to $100/hour, effective January 1, 2020. Following a public hearing held May 16, 2018, the new order partially grants the petition submitted by a broad coalition of advocates seeking to end financial conflicts of interests of private lawyers who represent poor people charged with crimes. The coalition included two former Supreme Court of Wisconsin justices, the entire leadership of the State Bar of Wisconsin, noted law professors, and numerous high-profile leaders of the legal community from all ends of the political spectrum. Meanwhile, the compensation paid by the state to private attorneys assigned by the State Public Defender remains at $40/hour or an even lower fixed contract amount, which the Court acknowledged to be “abysmally low” and undisputedly “the lowest in the country.” Keep reading, as we explain why and how the Wisconsin Supreme Court reached this result that is destined to shift the cost of indigent defense services in large part from the state to the counties.
How Wisconsin provides and pays for the right to counsel for indigent defendants
The Wisconsin State Public Defenders (SPD) is an executive branch agency providing right to counsel services throughout the state. The Governor, with advice and consent of the Senate, appoints nine people to the Public Defender Board that oversees the SPD. The board appoints the chief public defender of the SPD, who is responsible for carrying out the board’s policies and directives.
Right to counsel services throughout Wisconsin are provided in the first instance by attorneys who are employees of the SPD and paid by the state, with all of their overhead needs provided by the state. The SPD has 35 local public defender offices to handle trial level services.
The SPD also has an Assigned Counsel Division, set apart from the primary system through an ethical screen, that provides private attorneys to represent indigent defendants on a case-by-case basis. These private lawyers have significant financial conflicts imposed upon them by the State of Wisconsin. They are compensated either at $40 per hour (Wis. Stat. § 977.08(4m)(c); a rate that has not changed since 1995 when the legislature reduced the rate from $50 per hour), or through contracts with the SPD that pay a fixed amount per case required by statute to be less than would be received if they were paid the $40 hourly rate (Wis. Stat. § 977.08(3)(f)). Either way, the attorneys are responsible for paying all of their own overhead expenses. As the Court observed in its June 27, 2018 order, “[f]orty dollars an hour does not even cover a lawyer’s overhead expenses. . . . [T]he number of attorneys willing to take these public defender appointments has declined steadily . . ..” Nonetheless, the Court declined to declare the $40 hourly rate set by the legislature to be unreasonable, as it had been requested to do.
Although the majority of indigent defendants in Wisconsin have historically been represented by attorneys who are paid with state funds, there is one notable and growing exception. As the Court explains in its June 27, 2018 order: “If lawyers are unavailable or unwilling to represent indigent clients at the SPD rate of $40/hour, as is increasingly the case, then judges must appoint a lawyer under SCR 81.02, at county expense,” citing State v. Dean, 471 N.W.2d 310 (Wis. Ct. App. 1991). SCR 81.02 is a court rule established by the Wisconsin Supreme Court that requires counties to pay $70 per hour for attorneys appointed directly through the courts, or alternatively the counties may contract with attorneys for these services at a lesser rate. It is this hourly rate, established by the Court and paid by the counties, that will increase to $100/hour in January 2020 under the Court’s June 27, 2018 order. These county paid attorneys are responsible for paying all of their own overhead expenses.
All of this means indigent defendants who are facing the possibility of incarceration in Wisconsin will be represented by one of three types of attorneys who perform under very different levels of supervision and compensation: (1) an assistant state public defender who is employed by the SPD, is compensated at an annual salary paid by the state and with all of their overhead provided by the state, and who receives in-house supervision by the SPD; or (2) a private attorney who is paid not more than $40 per hour by the state, out of which they must provide all of their own overhead, and who has only limited supervision through the SPD’s Assigned Counsel Division; or (3) a private attorney who is paid not more than $70 per hour by the county (increasing to $100 per hour in January 2020), out of which they must provide all of their own overhead, and who has no independent supervision at all.
What the Wisconsin Supreme Court order does and does not do
The petition asked the Court to adopt a rule stating that any hourly rate paid by the state to private attorneys through the SPD Assigned Counsel Division is “unreasonable” if it is less than the hourly rate set by court rule for attorneys appointed by the courts and paid by the counties. In other words, the petitioners were asking the Court to do an end-run around the legislature’s statutory directive to pay SPD assigned counsel attorneys at $40 per hour or less. Though the Court found that “[a] rate of $100/hour is reasonable and necessary to ensure the court can obtain needed counsel to assist in the administration of justice,” being “highly mindful of the separation of powers,” the Court “decline[d] to use [its] administrative regulatory process to undermine a legislative enactment.”
Both the SPD (by statute) and the counties (by court rule) are allowed to enter into contracts with private attorneys paying a “fixed” amount per case that is even lower than the hourly rate of $40 set by statute for the state to pay and $70 set by court rule for the counties to pay. These fixed fee contracts by definition pay less than the already low available hourly rates, and they require lawyers to pay for all of their own overhead expenses, but more importantly the lawyer is paid the same amount no matter how much or little the lawyer works on a case. For any lawyer willing to take one of these extremely low-paying contracts, it is in the lawyer’s own financial interest to spend as little time as possible to quickly earn the fixed fee, placing the lawyer in direct conflict with the indigent defendant’s interest in achieving the best possible legal outcome. The Court declined to ban these fixed fee contracts.
This brings us to the one change granted by the Court’s June 27, 2018 order. Effective January 1, 2020, whenever a court directly appoints a private attorney to represent an indigent defendant (rather than going through the SPD Assigned Counsel Division), the county must pay that attorney $100 per hour (unless the county has a fixed fee contract for an even lesser amount with an attorney to provide representation). In granting this change in compensation, while denying the others, the Court acknowledged that its decision “will have a profound impact on existing county budgets . . . [because] costs for indigent defense, which should be borne by the state as a whole, are being shifted to individual counties.”
The Court’s order may be pushing the state closer to the brink of a fullblown constitutional crisis. Based on the evidence presented at the public hearing, the Court found that “[p]rivate attorneys currently handle nearly half of all SPD eligible representations” – those now paid at $40 per hour or less. And, of course, private attorneys handle all of the appointments to represent those who are found by a court to be entitled to public counsel but who do not meet the SPD’s eligibility requirements. Once the new rate takes effect in January 2020, why would any private attorney agree to work for $40 an hour, or an even lesser fixed contract rate, knowing that they can simply wait and a court will have to appoint them and a county will have to pay them $100 an hour.
This will most assuredly cause all counties to spend more in providing the right to counsel to indigent defendants. And, it is too often the case that the counties with the highest demand for indigent defense services are the ones least able to afford them, because the circumstances that limit a county’s revenue – such as low property values, high unemployment, and limited household incomes – are often correlated with both high poverty rates and high crime rates.
In pushing off the pay rate increase until January 2020, the Court seems to both anticipate future litigation and to be giving the legislature a chance to fix the system before a constitutional collapse. Of the 18+ pages in the decision, the Court devotes fully six of them to detailing the severe and increasing shortage of private attorneys willing to accept appointed cases, the delays this causes in fulfilling the right to counsel, and the systemic litigation that has occurred in other states facing similar situations. The Court then observes that it “might, in a different procedural posture, be called upon to rule on the constitutionality of the statutory rate” paid to private attorneys by the state through the SPD. The order concludes by stating: “We hope that a confrontation in the form of a constitutional challenge will not occur and trust that the legislature will work with the courts, the SPD, the petitioners, the counties, and other justice partners to ensure adequate funding for the SPD that is urgently needed to forestall what is clearly, an emerging constitutional crisis.”
The dissent questions the Court’s power over the purse
Justices Kelly and Bradley strongly dissented from the majority order. But before explaining the reasons for their dissent, they first said: “Compensation for attorneys appointed by the court to represent indigent criminal defendant is absurdly inadequate. The petitioners have established this proposition to an almost metaphysical certainty, which is no mean feat for a question of economics.”
The focus of the dissent is that the separation of powers limits the judicial branch from ever exerting the power of the purse, through either taxing or spending. As the two justices succinctly state it, “when we tell Wisconsin’s counties to pay for the attorneys we appoint, we are trespassing on authority that belongs to others.” And that leads to further encroachment on the authority of the legislature. “When we issue an order, we expect it to be obeyed. So when the county boards next meet, they must adjust their budgets and all of their spending priorities to make room for the non-negotiable financial obligation we impose on them. And what if there is simply no room for our demand? Will we order them to raise taxes?”
The dissent does not reach these conclusions lightly. First, they trace the long constitutional history of legislatures holding the power to tax and spend, beginning with the Federalist Papers and continuing through a U.S. Supreme Court decision as recent as 2017. Next, they explain the pragmatic basis for the legislature holding this power rather than the courts, because each decision about taxing and spending “involves matters of public policy” that “require the balancing of one good against another” – a balancing and weighing of public policies that courts are ill-equipped to make. Finally, the dissenting justices trace the line of cases in which “Wisconsin’s judiciary has been ordering counties to pay for appointed counsel for almost as long as we have been a State.” Beginning with Carpenter v. County of Dane, 9 Wis. 249 (Wis. 1859), and continuing through State ex rel. Friedrich v. Circuit Court for Dane Cty., 192 Wis. 2d 1, 531 N.W.2d 32 (Wis. 1995) (per curiam), the dissent makes a sound argument that the Court has never identified any source of its claimed authority to set the compensation for court appointed attorneys or to order any governmental body to pay them. For all of these reasons, the dissenting justices believe the Wisconsin Supreme Court lacks authority to order counties to pay for the right to counsel: “I think it is fair to say that raising the hourly rate for court-appointed attorneys is a ‘just and salutary measure.’ But just because it is good, and even needful, does not create in us the authority to make it so. Our ‘inherent powers’ are no match for our constitution’s explicit grant of the appropriation power to the legislature.”
Like the majority, the dissenting justices seem to anticipate litigation, while hoping for a legislative cure. The dissent concludes: “[The petitioners] speak truly when they say there is a constitutional crisis on the horizon. The evidence that indigent defendants are being held in jail for extended periods of time for want of counsel is deeply disturbing. The constitution may have something to say about the predicament of such defendants; it would be unfortunate if a declaration on that question were necessary. The petitioners must address themselves to the legislature, something I know they have done many times before. Perhaps persistence will grant them a more responsive audience.”
Just as the power of the purse is traditionally allocated to the lawmaking branch of government, the authority to interpret the demands of the Constitution has been since Marbury v. Madison was decided in 1803 unarguably the province of the courts. With its June 27, 2018 order, a majority of the Wisconsin Supreme Court finds it has the authority to set compensation for private attorneys to represent indigent defendants (at least in cases where the state legislature has not acted) and to order counties to pay those fees.
Here at the Sixth Amendment Center, our role is not to say what the law should or should not be, but rather to make policymakers aware of the requirements of the Sixth Amendment as interpreted by the courts and illuminated through standards and to aid policymakers in knowing how best to meet those requirements. To the extent that the 6AC has, in the past, encouraged courts to set compensation rates for indigent defense attorneys, we acknowledge that we overstepped. We would be remiss to ignore the warning siren raised by the Wisconsin dissent and to fail to bring it to the attention of policymakers in other states.
Most states have more than one court system in which private attorneys are compensated to represent indigent defendants who face the possibility of incarceration. For example, in many states, counties or cities operate local courts that are outside the overview of the state courts. Many states have special provisions governing compensation rates in certain types of indigent defense cases, such as death penalty or juvenile cases, that differ from the compensation paid to private attorneys providing more general representation to the indigent accused. And it appears that all states have some sort of default fallback provision that allows a judge, in the interests and necessity of justice, to directly appoint a private attorney and order some governmental entity to pay that attorney something reasonable. In short, Wisconsin is not alone in its multi-tiered method of compensating attorneys who provide Sixth Amendment right to counsel representation.
States divide authority between their courts and legislatures differently, and states vary significantly in where they have placed responsibility for the provision of counsel and its funding. As of 2018, in addition to Wisconsin there are nine states where the courts directly set the rate of compensation for at least some of the private attorneys who are appointed to represent indigent defendants facing the possibility of incarceration. And like in Wisconsin, in some of these states a different rate is set by another branch of government.
- Alaska – $75 hourly rate, with maximum fee of $1,000 per case (Alaska R. Ct. Admin.12(e)(5)(B)); hourly rates by experience of attorney, ranging from $ 60 to $85, with maximum fee per case based on case type, and also fixed fees (Telephone Interview with Quinlan Steiner, Office of Public Advocacy (Feb. 16, 2018)).
- Colorado – hourly rates by case type, ranging from $70 to $90, with maximum fee per case based on case type (Chief Justice Directive 04-04 at Att. D(1) (Colo. Nov. 2014)).
- New Hampshire – fixed fee per case “unit” (New Hampshire Judicial Council, Contract Attorney Unit Schedule (FY 2018)); hourly rate by case type, ranging from $ 60 to $100, with maximum fee per case based on case type (N.H. R. Sup. Ct. 47).
- Rhode Island – hourly rates by case type, ranging from $30 to $100, with maximum fee per case based on case type (Executive Order 2013-07 (R.I. July 15, 2013)).
- South Dakota – $94 hourly rate (Letter from Greg Sattizahn, State Court Administrator, South Dakota Unified Judicial System, to Thomas Barnett, State Bar of South Dakota (Nov. 15, 2017), pursuant to South Dakota Unified Judicial System policy on court-appointed attorney fees); “[C]ourt-appointed attorney fees will increase annually in an amount equal to the cost of living increase that state employees receive each year from the legislature” (South Dakota Unified Judicial System policy on court-appointed attorney fees).
- Tennessee – $50 hourly rate in court and $40 out of court, with maximum fee per case based on case type (Tenn. Sup. Ct. R. 13 § 2).
- Vermont – $50 hourly rate, with maximum fee per case based on case type (Admin. Order 4, § 6 (Vt.)).
- Virginia – up to $90 hourly rate (Supreme Court of Virginia, Chart of Allowances (Feb. 1, 2018)), with maximum fee per case based on case type (Va. Code Ann. § 19.2-163 (2016)).
- Wyoming – up to $100 hourly rate in court and minimum $35/maximum $60 out of court (Wyo. R. Crim. Proc.44(e)).
Though the dissenting justices did not prevail in the recent Wisconsin order, the argument that courts encroach on the legislative power of the purse when setting compensation rates for attorneys providing the right to counsel to indigent defendants may garner support in other states or even in Wisconsin at a future point. So what can courts do when confronted with compensation schemes that result in the denial of the right to counsel? They can and must uphold the right of each and every indigent defendant to receive effective assistance of counsel, regardless of whether the attorney is provided and paid for by the state or by local government. The Wisconsin order recounts many of the ways in which other courts have remedied the denial of the right to counsel without encroaching on the legislature’s taxing and spending authority. We provide just two examples here.
The Massachusetts Supreme Court, in 2004, considered a lawsuit establishing that chronic underfunding of the assigned counsel system resulted in an insufficient number of attorneys to represent indigent defendants. Lavallee v. Justices in the Hampden Superior Court, 812 N.E.2d 895 (Mass. 2004). The Massachusetts court did not order the state or local governments to provide more funding for the Sixth Amendment right to counsel. Instead, the court ordered that the state must show cause why any defendant who had been arrested should not be released if no attorney was appointed within seven days of the arrest and also why criminal charges should not be dismissed against any indigent defendant who did not receive an attorney within 45 days. As is clearly within the province of the courts, the Massachusetts Supreme Court protected the right to counsel for indigent defendants and ensured a remedy for its denial.
A federal court found in a civil lawsuit that two cities operating municipal public defense systems in Washington State had made intentional decisions that deprived indigent criminal defendants of their Sixth Amendment right to the effective assistance of counsel. Wilbur v. City of Mount Vernon, 989 F.Supp.2d 2013 (W.D. Wash. 2013). Among the intentional choices made by the cities was the decision to pay indigent defense attorneys through flat fee contracts that “left the defenders compensated at such a paltry level that even a brief meeting at the outset of the representation would likely make the venture unprofitable,” rendering it “virtually impossible that the lawyer, no matter how competent or diligent, will be able to provide effective assistance.” The court did not order the cities to provide more funding for the Sixth Amendment right to counsel. Instead, the court granted the injunctive relief available in a civil suit, after finding that: “A system that makes it impossible for appointed counsel to provide the sort of assistance required by the Sixth Amendment works irreparable harm: the lack of an actual representational relationship and/or adversarial testing injures both the indigent defendant and the criminal justice system as a whole.” The court imposed an ongoing injunction on the cities requiring them to meet enumerated standards for the provision of the right to counsel as accepted by the legal profession in the state of Washington, while leaving it to the cities to decide how to fiscally meet those standards. Here again, the court protected the right to counsel for indigent defendants and ensured a remedy for its denial.
Courts can only consider these constitutional challenges when they arise in a case before them. So it is imperative for individual lawyers to establish a record showing that the compensation afforded them to represent indigent defendants results in the denial of the right to counsel to their clients. But legislatures are not so constrained and can act at any time to prevent the violation of the Sixth Amendment. And not every legislative solution requires spending more money. Instead, legislatures can decrease reliance on the criminal justice system and increase diversion programs to provide help with life problems that are the root source of criminality. Similarly, lawmakers can change low-level, non-serious, victimless, and/or regulatory misbehaviors from crimes into offenses that do not threaten jail time and therefore do not trigger the constitutional right to counsel. By shrinking the size of the criminal justice system, the funding requirements for the effective assistance of counsel under the Sixth Amendment can be met, the public can be protected, and all of this can be accomplished without increasing the tax burden.