Inadequate Indigent Defense Undermines System's Fairness
December 10, 2002
A series in the Milwaukee Journal Sentinel (December 7 & 8, 2002)is focusing
attention on the number of poor Wisconsin residents who are charged with
serious misdemeanors or even felonies, but denied public defenders or
court-appointed attorneys. The maximum income level which determines eligibility
for a public defender is $248 per month for a single person. This is one
of the lowest cutoffs, if not the lowest cutoff, in the country.
Many indigent individuals, especially in Milwaukee County, can not afford
adequate representation. According to the Journal Sentinel, "An estimated
2,600 people were denied public defenders in Milwaukee County last year."
In more than a few cases the State's failure to provide representation
certainly violates an individual's Sixth Amendment constitutional right
to counsel. This is important because when so many people are left on
their own in serious cases this failure undermines the credibility and
fairness of our criminal justice system.
In America, including in Wisconsin, our rhetoric proclaiming the righteousness
of our criminal justice system is too often just that, rhetoric. The "presumption
of innocence" is widely misunderstood.
There are many reasons for the injustices that occur. Racial bias, pandering
to the public's fears by the electronic media's news and entertainment
programs, the economics of incarceration, and the willingness of those
running the system to get on with their jobs, all contribute to a system
that doesn't work for poor people.
The ridiculously low income level for eligibility for a state public
defender and the apparent unwillingness of many Milwaukee County judges
to appoint lawyers for criminal defendants raises questions about the
fairness of our criminal justice system. They also cry out for a remedy.
A self-examination is not enough. If the decision-makers in Milwaukee
and Madison can't begin to remedy this situation in the state budget,
then they may have their control over the situation taken away by the
federal courts. A federal judge may order a very expensive remedy at a
time when our state and county cannot afford it.
The ACLU is currently suing the State of Montana over the inadequacy
of its indigent defense program and in recent years has settled similar
lawsuits against the State of Connecticut and Allegheny County, Pennsylvania.
Legislators should also look at the way that court-appointed attorneys
are funded. For the most part, they are funded at county expense. Circuit
Court Judges, who operate in the real world, know that the local property
tax is a hot political item in Wisconsin. A few of them may therefore
be susceptible to the political temptation to allow anything in order
not to increase their county's property tax.
Another issue that deserves yet another look is the lack of diversity
among judges, particularly in Milwaukee County. If a judge can't understand
the daily obstacles faced by poor people who come into court without attorneys,
it's hard to imagine that the judge will have the patience to ask the
right questions and explain the possibilities.
Following the recent settlement of cases in which the ACLU/WIF was co-counsel,
challenging overcrowding at the Milwaukee County Jail and the horrendous
conditions of confinement at the so-called "Supermax" prison in Boscobel,
the ACLU of Wisconsin will be marshaling its resources for further litigation
to remedy constitutional violations in our criminal justice and corrections
system.. But before we sue over inadequate indigent defense- we want the
new legislature and Governor to address the issue promptly. Given the
huge budget deficit that state officials irresponsibly have allowed to
grow - their task will not be easy.
For every increased expenditure in the next state budget there will have
to be cuts - if taxes are not going to be raised. Government agencies
and units at the state and local level will be yelling as loud as can
be. But that is not the ACLU's problem - when constitutional rights are
violated. Our constitutional system binds our government and citizens
together - it's compact that takes precedence over any special interest.
Human lives are altered in ways that affect us all when fairness is absent
from our criminal justice system.
Christopher Ahmuty
Executive Director, American Civil Liberties Union of Wisconsin
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