SPD Indigency Standards

The State Public Defender Indigency Determination Standards and Payment Requirements--Are they Legal?
by
Waring R. Fincke

The mission of the State Public Defender (SPD) is to provide competent counsel to indigent citizens accused of Criminal or Childrens Code violations or who face deprivation of liberty in mental health or developmental disability proceedings. The recently passed budget bill requires changes in how the SPD determines who is eligible for appointed counsel in these proceedings and sets up a system for collecting fees from those who receive counsel.

The SPD recently announced administrative rules to implement these requirements. The eligibility scheme is designed to qualify fewer people for appointed counsel. The payment plans ask those found to be eligible for a small prepayment of attorneys fees in order to avoid later payment of a much larger fee after the case is over as well as establishing collection procedures for those who do not pay as required. These schemes call for an examination of the realities of what it costs to live and to hire competent counsel and of the legality of the payment and recoupment requirements.

The impact of the changes brought about by the budget bill are already being felt. Fewer people are being provided with SPD appointed counsel in criminal cases. In some cases, courts are appointing counsel for indigent defendants at county expense. In some cases, people who truly cannot afford to hire competent counsel are going without counsel in serious criminal litigation. A review of the current guidelines and the proposed rules calls for a complete reworking of the three components of the system.

Indigency Standards (1) In order to qualify for an appointed lawyer, the citizen must submit verifiable income and cost of living figures at his or her initial interview. These figures are used in a complicated set of formulae to determine cost of living and the cost to hire counsel. If the person's income and assets are more than the cost of living formula but less than what the SPD uses as the cost of counsel for the particular case, the person is provided a lawyer, subject to repayment procedures.

The SPD cost of living formula must be revised to accurately reflect the true cost of living in the various areas of the State, i.e., Milwaukee, Milwaukee Suburban, Smaller Urban (Madison, Kenosha, Eau Claire, etc.) and Rural. The current figures used to calculate cost-of-living expenses based on family size were taken from 1987 AFDC (Aid to Families With Dependent Children) benefit level tables. These are not income tables, nor are they cost-of-living tables. These benefit level tables merely represent the meager sums that the State of Wisconsin provided to support dependent children in 1987. The shocking fact is that even in 1987, these benefit levels were not intended to match then existing standards of need (i.e., cost-of-living levels). In fact, the 1987 AFDC grant levels were set to cover only 80% of the statewide standards of need. (Center on Social Welfare Policy and Law, Publication No. 210-2 at 43). The SPD's indigency standard begins with a false premise that the cost-of-living tables actually reflect what it costs different size families to survive.

The SPD indigency formula for determining cost-of-living should not be related at all to AFDC levels or any other benefit levels. Section 977.07 (2)(a), Wis. Stats., states that the determination of ability to pay for representation shall be based on specific written standards "relating to income...." Benefit levels are not income levels, cost of living measures or standards of minimum need. See, Clark v. Milwaukee County, 188 Wis. 2d 171, 181, 524 N.W.2d 382 (1994).

The urban population poverty income guideline for a family of four in 1994 placed the cost-of-living at more than $14,800, compared to the SPD figure of $7,404. Federal poverty income guidelines are more than twice the level used by the SPD to determine indigency. (Annual Update of the HHS Poverty Income Guidelines, February 10, 1994, Federal Register, vol. 59, No. 28, pp. 6277-6278). These particular federal poverty income guidelines are used to determine eligibility for programs such as the Head Start program. Medical assistance eligibility is also measured by poverty income guidelines: 185% of those income levels is the cutoff point, not the 50%-or-lower formula now proposed for continued use by the SPD rule. Even the much-touted "Wisconsin Works" or "W-2" program is proposing to use income eligibility guidelines that are 165% of the federal poverty income levels. Moreover, the federal legal services program for the poor, Legal Action of Wisconsin, and the Legal Aid Society of Milwaukee use the federal poverty income guidelines as an eligibility standard, not woefully unrealistic benefit levels used by the SPD.

The next major defect in the proposed SPD cost-of-living formula is the obvious fact that it shockingly out-of-date. The proposed standard uses a formula based on 80% of basic needs in 1987. Times have changed; and for poor people more than anyone else, the value of the dollar has dropped. The real value of AFDC benefits has dropped at an average nationwide decline of 37% since 1975, meaning that AFDC benefit levels today are ridiculously low, indeed, dishonest measures of living costs. The drop in value of AFDC benefits in Wisconsin between 1991 and 1994 greatly accelerated, declining by 21%. (Center on Social Welfare and Law at 300.) Perhaps the ultimate fraud in these standards is that they are based on Wisconsin 1987 AFDC levels which are lower than the levels in existence from 1975 to 1987. The end result is that the rule's cost of living formula leads to grossly inaccurate calculations of available income. The out of date, unjustifiably low numbers reflect neither the income standards required by ¤977.07, Wis. Stats., nor the cost of "the necessities of life." Wis. Admin. Code PD ¤3.03 (1)(d).

Cost of Counsel Another formula which needs revision is the cost of counsel table. The current table does not accurately reflect the true cost of hiring counsel. In late 1993, the State Bar's Criminal Law Section conducted a survey of fees in criminal cases. The results were published in the June, 1994 issue of the Criminal Law News. The results indicate that it is far more costly to hire counsel than the current cost of counsel table reflects. For example, the survey showed that the average fee for a first or second degree homicide in Milwaukee was $25,000 and in the rest of the state was $22,125. The SPD cost of counsel table for Milwaukee lists first deree homicide costs at $7,500.00 The out state figure is the same. The other categories of cases reflect similar disparities. There is no reason to believe that the fees would be lower today than they were in late 1993. If the true cost of counsel was reflected in the SPD cost of counsel table, more people would be qualified to receive appointed counsel through the SPD. As it stands now, the lower figures shrink the eligibility window and eliminate many from receiving appointed counsel.

Payment Requirements(2) Finally, there are serious questions about the State's legal ability to implement the currently required prepayment and recoupment schemes.

In Fuller v. Oregon, 417 U.S. 40 (1974), the Supreme Court set out certain conditions for recoupment of attorney fees from apparently indigent criminal defendants. These conditions include: (1) repayment must not be mandatory; (2) repayment must be imposed only upon convicted defendants; (3) repayment may be ordered only if the defendant is or will be able to pay; (4) the financial resources of the defendant must be taken into consideration; (5) a repayment obligation may not be imposed if it appears that there is no likelihood the defendant's indigency will end; and (6) the convicted person must be permitted to petition the court for remission of the payment of costs.

It seems clear that provision of counsel cannot be conditioned on the prepayment of partial attorney fees. Hanson v. Passer, 13 F.3d 275, 279-280 (8th Cir. 1994); People v. Cozad, 158 Ill.App.3d 664, 511 N.E.2d 211 (1987). We are aware of no cases in which the advance payment of fees has been upheld.

There is substantial authority to support the proposition that recoupment of fees from a convicted defendant is permissible only when the court has considered the defendant's financial circumstances, the defendant's ability to pay (or discernible future ability to do so), and the actual cost of the legal services provided. People v. Cozad, supra; State v. Oehlerking, 147 Ariz. 266, 709 P.2d 900 (App. 1985); People v. Bramlett, 188 Ill.App.3d 1056, 455 N.E.2d 1092 (1983); People v. Nilsen, 199 Cal.App.3d 344, 244 Cal.Reptr. 814 (1988); State v. Haines, 360 N.W.2d 791 (Iowa 1985); State v. Haught, 371 S.E.2d 54 (W.Va. 1983); Keller v. State, 771 P.2d 379 (Wyo., 1989).

These authorities lead to the conclusion that in order for the SPD regulations to be valid, they: (1) cannot make prepayment a condition of the appointment or assignment of counsel; (2) can only impose the payment of fees on a convicted defendant; (3) must require a case-by-case determination of the defendant's financial circumstances and his/her ability to pay; and (4) must require a determination of the actual cost of providing counsel in each particular case.

Applying these criteria, the current and proposed scheme is unconstitutional. First, there is no way of knowing, at the time of appointment, how much the actual cost of counsel will be. Second, the costs cannot be imposed on a defendant who is unable to pay and unlikely to become able to pay. Third, the fees cannot be imposed upon a defendant who is not convicted. Finally, the prepayment of fees cannot be a condition to the appointment of counsel or be seen as "chilling" the request for the appointment of counsel. See, Wilson, Compelling Indigent Defendants to Pay the Cost of Counsel Adds Up to Bad Policy, Bad Law, 3 Criminal Justice 16 (American Bar Assoc., Fall, 1988).

For these reasons, both the Criminal Law Section of the State Bar of Wisconsin and the Wisconsin Association of Criminal Defense Lawyers oppose the implementation of the proposed regulations at the recent public hearings on the proposed rules and requested the State Public Defender Board to reevaluate the cost of living and cost of counsel formulae in light of current economic figures and to rework the recoupment and repayment of the actual costs of providing counsel in light of the authorities cited above.

(1) The research and much of the language of this section was provided by James A. Walrath, Executive Director of the Legal Aid Society of Milwaukee County, Inc. and President-Elect of WACDL.
(2) The research and much of language of this section was provided by Dean Howard B. Eisenberg of Marquette University Law School who was the first Wisconsin State Public Defender.

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