Public defender shortage at the center of a class action lawsuit

NOW: Public defender shortage at the center of a class action lawsuit

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MADISON, Wis. (CBS 58) – The lack of public defenders in Wisconsin is now the center of a class action lawsuit.

A group of inmates, some whom have been waiting weeks or months to be assigned attorneys, filed a lawsuit against Gov. Tony Evers and members of the state public defender board.

Legal action groups, including the National and Wisconsin Association of Criminal Defense Lawyers, are representing a handful of the plaintiffs.

The suit claims there’s an estimated backlog of 35,000 pending criminal cases across the state and requests criminal charges against the defendants be dismissed if they don’t receive representation within 14 days.

In a statement, the National Association of Criminal Defense Lawyers called the backlog a “constitutional crisis.”

“The failure to provide counsel within a reasonable time violates the Sixth Amendment right to counsel of thousands of people in Wisconsin each day,” the statement said.

The lawsuit cites the Wisconsin Supreme Court, “has indicated that a delay of greater than 14 days is unreasonable.”

John Birdsall, an attorney representing the Wisconsin Association of Criminal Defense Lawyers, said they filed the suit in part to emphasize the need for justice.

“The political branches of the state just are not taking their obligations seriously to make a functioning, meaningful, and fair system,” Birdsall said.

The legal action is the latest effort to reform a court system state officials say has been an ongoing crisis for years and only intensified once Covid-19 hit.

Wisconsin’s State Public Defenders Board declined to comment on the lawsuit but officials acknowledged the delays in legal representation, and the backlog of cases have repercussions for all parties involved.

“The effects go beyond just impacts to clients, partially clients who are being held in custody,” Adam Plotkin, legislative liaison for the state public defenders board said. “It does have a negative impact on public safety in the long term.”

Plotkin said there are factors out of their control in terms of what drives caseloads and workflow. He pointed to the increase of video surveillance that takes time to process and review, along with the uncertainty of how many clients request legal representation because they can’t afford their own attorney.

“These are factors we can’t control, but definitely drive our workload,” said Plotkin.

This is not the first time the state has been hit with a similar class action lawsuit over the lack of public defenders.

In 2019, a suit was filed in federal court but was ultimately dismissed a year later by a Dane County judge largely in part because the state argued it was protected under sovereign immunity. It’s a legal document that shields the government from getting sued in their own court system without consent.

Experts say it could take years to clear the backlog of pending cases across Wisconsin's court system. To help, Plotkin said his office will submit in their next budget request for more funding for a, “significant increase in the hourly rate for private bar attorneys, resources for staff, and salaries increases for staff attorneys.”

For years, the wages for private attorneys in Wisconsin used to be the lowest in the country at $40 an hour. In 2020, the Legislature approved increasing the hourly rate to $70, which went into effect in 2021.

Federal funding from the American Rescue Act also helped provide aid to counties facing challenges in the court system.

The governor’s office declined to comment on the lawsuit since they have yet to be served.

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