Assigned counsel systems are facing a crisis of underfunding. Success stories, including a recent effort in Wisconsin to raise the lowest hourly rate in the nation, demonstrate that through diligent advocacy, education, and sometimes litigation, policymakers can see the need for rate increases. But a question remains as to whether such success is sustainable, or whether the same battle will inevitably recur.
Assigned Counsel Systems
A person charged with a criminal offense who faces the possibility of jail time has the right to counsel. If the individual cannot afford to hire an attorney, one is appointed. In most jurisdictions, this attorney will be part of a public defender’s office—a salaried lawyer who works for a law firm-like organization that specializes in representing such individuals. But the attorney could also be someone in private practice appointed from an assigned counsel panel or list who is paid on an hourly or per case basis.
Assigned counsel programs are often the backup systems for public defenders, employed when the local public defender’s office is already representing a codefendant, has some other conflict in the case, or simply has too many cases. In other areas, particularly rural areas where the total caseload may make a full-time public defender’s office impractical, all public defense cases are handled by assigned counsel.
While the crisis in public defense has received a fair amount of attention, less attention is paid to the ways in which chronic underfunding and case overloads have impacted appointed counsel systems. The ABA Criminal Justice Standards for Providing Defense Services Standard 5-2.4 calls for appointed attorneys to receive “compensation at a reasonable hourly rate . . . for all hours necessary” in addition to reimbursement for “reasonable out-of-pocket expenses.” This is rarely the case. While rates for assigned counsel in the federal criminal justice system are currently $148 an hour, rates for assigned counsel in state and local systems are considerably lower—generally around $60–$70 an hour. Moreover, these rates are often capped on a per case basis, e.g., $1,000 for a misdemeanor case.
In a number of jurisdictions, low hourly rates have led to significant questions regarding the quality of representation defendants receive. Often such rates attract primarily new lawyers, who lack the training and experience to handle complex cases. At the same time, case maximums or caps can create an incentive for attorneys to try and resolve a case too quickly or put in less work on more complex cases. These low rates and caps are also driving many lawyers to stop accepting appointments, resulting in a shortage. When no lawyer is available to take a case, an accused individual can languish in jail without counsel.
Nowhere was this crisis more evident than Wisconsin. Wisconsin has two assigned counsel rates—one for lawyers appointed by the state public defender’s (SPD) office, and one for appointments made by the court. If a defendant qualifies for public defense services but the local public defender’s office cannot represent him or her due to conflict, overflow, or lack of a public defense office in the area, an attorney is appointed by the SPD office. The rate for these lawyers had long been the nation’s lowest—$40 an hour—and it had remained unchanged for more than 20 years. The judicial appointment rate, which applied only when an individual did not qualify for public defender representation and yet the court appointed a lawyer, was $70 an hour.
After years of advocating unsuccessfully to raise the rates, in 2017 defense attorneys and organizations filed a petition with the Wisconsin Supreme Court requesting that the court find the SPD appointment rate “unreasonable,” raise the rates of compensation to $100 an hour, and make the rates subject to annual cost-of-living increases. (Petition to Amend Supreme Court Rule 81.02, No. 17-06 (Wis. May 25, 2017).)
The Wisconsin Supreme Court ruled on the petition in June 2018 and acknowledged that the $40 per hour rate was “abysmally low” and that “[m]ost attorneys will not accept . . . appointments because they literally lose money if they take these cases.” (In re Petition to Amend SCR 81.02, No. 17-06 (Wis. June 27, 2018).) The court further recognized that these conditions result in a shortage of attorneys willing to accept appointment and noted that judges across the state report defendants are forced to wait weeks or even months to receive counsel, often while sitting in jail. Nevertheless, the court left the SPD rate of $40 an hour unchanged, though it increased the judicial appointment rate to $100 an hour. The court noted, however, that if “lawyers are unavailable or unwilling to represent indigent clients” under the $40 an hour state rate, the judge should consider appointing a lawyer under a different statute that contains a higher hourly rate that must be paid by the county. Under this scheme, “costs for indigent defense, which should be borne by the state as a whole, [would be] shifted to individual counties.”
The continuation of the low hourly rate resulted in a number of individuals left without counsel for weeks and, in some cases, months. An investigative report found that at least two people “killed themselves in jail after waiting for more than a week to be appointed a lawyer.” (Mario Koran, “Wisconsin’s ‘Constitutional Crisis’ Is Forcing People to Sit in Jail without a Lawyer,” Appeal (May 20, 2019).) In January 2019, a class action lawsuit was filed on behalf of all indigent criminal defendants asserting that the state was violating their constitutional rights to counsel and to a speedy trial. Plaintiffs in the suit had waited in jail between 21 and 75 days before lawyers accepted their cases.
As part of the state’s biennial budget, the SPD office, with the support of judges and justices, prosecutors, county boards, and other partners, proposed increasing the public defender appointment rate to $70 an hour. In July 2019, the governor signed a new budget that approved an increase in the SPD rate to $70 an hour. The rate increase will take effect in January 2020.
Other States in Crisis
Unfortunately, several other jurisdictions remain in need of similar reform. Maine, the only state that relies exclusively on assigned counsel to provide public defense, routinely runs out of money for defense services at the end of each biennial budget cycle. In 2012, the Maine Commission on Indigent Legal Services ran out of funding to pay the attorneys at the end of May. Lawyers then had to wait until after the new fiscal year began on July 1, 2012, to get paid. In an article in the Bangor Daily News, a local attorney, Aaron Frey, noted, “It’s hard for talented attorneys to stay involved in this kind of criminal work when they are not getting paid.” (Judy Harrison, “Maine Runs Out of Money for Court-Appointed Attorneys,” Bangor Daily News (May 27, 2012).) Funding similarly ran out in May 2017, requiring lawyers to wait nearly two months to get paid.
In Montana, the Office of the State Public Defender reduced the hourly rate from $62 an hour to $54 an hour in 2018 due to state budget cuts. In response, attorneys sued the office, arguing that the reduction violates the terms of a memorandum of understanding with the attorneys. The attorneys lost the case in the district court, but they have appealed to the Montana Supreme Court where the case is now pending.
Lessons Not Yet Learned
Wisconsin’s success mirrors those in other states where a combination of advocacy efforts, litigation, and a crisis in available lawyers helped achieve necessary improvements. In Massachusetts, for example, the state legislature increased the assigned counsel rate after the low rates caused a shortage of lawyers. The shortage led to litigation in which a court ruled that if an individual had to wait more than 45 days for counsel to be appointed, his or her case should be dismissed without prejudice. This ruling, combined with tremendous advocacy and educational efforts, pushed the legislature to enact substantial rate increases. Similarly, in 2003, New York’s hourly rates for appointed lawyers increased after litigation resulted in a ruling from the Court of Appeals in favor of the attorneys.
These successful reform efforts, however, also demonstrate that improvements are fleeting without structural protection. Massachusetts is now, once again, facing a lawyer shortage, and the Supreme Judicial Court is considering an emergency motion. In New York, attorneys are again campaigning for an increase in the assigned counsel rates, which have not been raised since the successful lawsuit in 2003.
This history shows that reform is incomplete if focused exclusively on rate increases. To be sustainable in the long term, reform must include not only a rate increase but also some structural protection, such as regular cost-of-living increases. In denying the routine cost-of-living increase requested in the petition, the Wisconsin Supreme Court committed to reviewing the hourly rate and considering an increase every two years. Only time will tell whether this is sufficient.