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In May, a coalition of Wisconsin lawyers petitioned the state Supreme Court to increase the pay rate for private lawyers appointed by the state Public Defender to represent criminal defendants who cannot afford lawyers.

So far, the Supreme Court has let the petition proceed, tentatively setting a hearing for May 16 to listen to arguments for raising the $40-per-hour rate, which is the lowest in the U.S., to $100 per hour.

The pay rate has been an issue for decades, as the Office of the State Public Defender has asked to increase the reimbursement in all of its budget requests since 1995. But the rate has remained stuck at $40 per hour, which lawyers say often isn’t enough to mount a serious defense, when factoring in a variety of costs such as expert witnesses and investigators, not to mention the expenses of running an office and a salary for an attorney.

The petition was filed May 25 by the Wisconsin Association of Criminal Defense Lawyers and the Wisconsin Association of Justice, along with a group of lawyers that includes two former state Supreme Court justices, a former state attorney general and several prominent criminal defense attorneys.

Milwaukee criminal defense lawyer John Birdsall, who is among those leading the petitioners, said that the Boston-based Sixth Amendment Center, which provided a supporting study with the petition, is again working on a more in-depth study to present to the justices before the hearing, in particular about a lack of private lawyers in northern Wisconsin who are willing to take public defender appointments because of the pay issue.

The Sixth Amendment Center is also preparing an updated 50-state survey, Birdsall said, to show how other states have approached the issue of representing the indigent in court, and what efforts have been made by courts throughout the country to force a higher rate of pay for private bar lawyers taking public defender cases.

The reason that the state Supreme Court is seriously considering this, Birdsall said, is in its 2011 decision on a similar petition, which declined to mandate a rate increase. The court noted then that the system was reaching a point of crisis, Birdsall said, “that this is something that absolutely needs attention and the court has a responsibility” to consider it.

The 2011 decision noted, however, that the court shared responsibility over the issue with the Legislature, and declined to circumvent the Legislature’s authority.

To that end, two state Assembly members, Ron Tusler, R-Harrison, and Evan Goyke, D-Milwaukee, have been circulating a proposed bill for a tiered increase in the private bar compensation rate, and in late December were looking for co-sponsors for their bill.

Materials circulated in support of the Tusler-Goyke bill said it would increase the reimbursement rate into three tiers, $55, $60 and $70 per hour, depending on the difficulty of the case. The increased cost to the state would be an estimated $19.4 million per year.

The proposal would be an alternative to the $100-per-hour rate being sought before the Supreme Court, which Tusler and Goyke said would cost $31.8 million per year.

“Representative Goyke and I ask for your close consideration of this critical issue and (to) help us address it before the decision is made by the Wisconsin Supreme Court without legislative input,” Tusler wrote, “and before an ineffective assistance of counsel claim is filed as a result of our inaction to address this problem.”

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Ed Treleven is the courts reporter for the Wisconsin State Journal.