By Kevin Boneske
BROWN COUNTY – Republican state lawmakers who represent portions of Brown County have urged Gov. Tony Evers to use some American Rescue Plan Act (ARPA) funds to hire additional staff in the State Public Defender (SPD) office to help expedite the backlog of circuit court cases for defendants unable to afford their own attorneys.
In a letter they sent this month to Evers, the GOP lawmakers said case backlog increased during the COVID-19 pandemic.
“Meanwhile, not enough cases have been resolved to be able to alleviate the current backlog,” the letter said. “Brown County has served as an epicenter to this court crisis. By utilizing ARPA funds to address the impact of COVID-19 on cases pending in the court system, the SPD could provide the necessary relief through the use of limited-term employees over the next 18-24 months to alleviate this current, yet temporary backlog.”
State Rep. Shae Sortwell authored the letter and was joined by Reps. Joel Kitchens, John Macco, Jim Steineke, Dave Steffen and Elijah Behnke and Sens. Andre Jacque, Robert Cowles and Eric Wimberger.
Sortwell said it would be appropriate to use ARPA funds to hire additional SPD staff because the backlog – postponing hearings, trials, etc. – grew as a result of the pandemic.
“Not only do we need to help our public defenders reduce this backlog of cases, but we also need to maintain Wisconsinites’ constitutional right to a speedy trial,” he said. “I hope the governor concurs and offers the assistance these people need.”
Sortwell said the office of the lone Democratic state lawmaker in the county, Kristina Shelton, was also contacted about the matter, but he said she declined to sign the letter, which he characterized as being non-partisan in nature.
He said the response he got from Shelton’s office was she wanted to “look into the issue more.”
Shelton’s office aide confirmed she decided not to sign the letter, but instead contacted the governor’s office directly regarding the matter.
In Shelton’s letter to the governor, she urged him to “utilize a portion of the federal COVID funds to establish a regional public defender office to help counties, like Brown, who have significant backlogs.”
“This office will allow Brown County to utilize public defenders in the region, along with other counties, as caseloads ebb and flow,” she said.
“Long term, we need to continue to strive for pay parity between public defenders and private attorneys and seriously consider student loan forgiveness for attorneys that work in hard-to-staff areas. Of course, we’d also welcome other solutions or ideas your office might have to address this current crisis.”
Shelton and local Republican state lawmakers were on hand earlier this month when the issue came up during Brown County’s Public Safety Committee meeting.
Committee members heard from representatives of the SPD office about problems with assigning an attorney to someone unable to afford one, such as the county having to pay for an attorney appointed by a circuit court judge.
Committee Chairman Keith Deneys said the committee has been “talking about this for quite some time,” and held a virtual meeting in March with the SPD office.
Deneys said the COVID-19 pandemic is one factor, along with an increase in offenses, in the problem of backlogged cases becoming worse.
“It’s escalating,” he said. “That’s where the concern is.”
Deneys said delays in getting attorneys assigned on time could result in someone being released who shouldn’t, with a felony case going through the appeals process being one example where this could happen,
He said the county wants to work with the state to get any assistance it can to help with the problem.
The resolution, to be sent to the governor and state lawmakers in the county, calls for: using ARPA funds to pay, and/or reimburse, the county for counsel for indigent criminal defendants that needed to be appointed by local circuit court judges since the pandemic began in March 2020; and/or using ARPA funds to temporarily staff up the local public defender office with experienced attorneys for the next 18-24 months or until the backlog of cases is resolved.
It also suggested using ARPA funds to take a combination of these actions, and/or actions as described in the letters from the Republican lawmakers and Shelton.
SPD Legislative Liaison Adam Plotkin said an attorney hired by the SPD office receives $70 an hour with the cost paid for by the state.
Though the hourly rate increased by $30 from $40 an hour as of Jan. 1, 2020, he said it still is $30 an hour less than when there is no attorney available to assign to a defendant through the SPD office.
Plotkin said a circuit court judge has to then assign an attorney at the county’s expense for $100 an hour, the rate mandated by the Wisconsin Supreme Court.
“We want to represent them,” he said. “We should not be passing that responsibility to the county.”
Plotkin said the SPD office has staff attorneys and also assigns cases to qualified private attorneys, such as when there is a conflict of interest for a staff attorney to handle a case.
He said there is now a problem with the $70 an hour being able to get enough private attorneys, who could elect to not accept public defender cases and instead receive $30 more an hour by being appointed by a judge.
Plotkin said the SPD’s Green Bay office, which handles cases in Door and Kewaunee counties, had a public defender from another office recently assigned there to handle the caseload. Another attorney will be coming.
“Brown County is definitely a focal point of the problem (with the public defender caseload), but it’s a statewide problem,” he said.
Plotkin said the county recently had around 300 individuals with pending cases waiting for an attorney to be assigned to them, delaying those matters from being resolved.
Though the county district attorney’s office was able to add three assistant district attorneys with additional state funding, Plotkin said the SPD office could use more attorneys to handle the backlog of cases.
He said the SPD office could use additional financial support to do that, with an allocation of $10-20 million in ARPA funds having been suggested as a short-term solution statewide.
Plotkin said he would like to see the hourly rate for public defenders increased from the current $70, which is less than half of what a defense attorney assigned to a federal case would receive.
He said allocating ARPA funds to hire additional SPD staff would help in the short term, but the problem with case backlog also needs to be addressed in the long term.
Plotkin said assigning an attorney through the SPD office also makes it possible for the office to hire experts to testify on a defendant’s behalf, while that may not happen when a judge appoints a lawyer, who might not be qualified to handle the case assigned.