The State Public Defender started out providing appellate representation. It soon brought in the established trial level program in Milwaukee and then branched out to cover the entire state. It is now the largest law firm in the State with offices in each county. It provides representation in criminal, juvenile (delinquency, CHIPS and TPR), guardianship and protective placement and mental commitment cases at both the trial and appellate level. This coverage is provided by lawyers employed by the State and by lawyers from the private bar who are appointed and paid by the agency under various formulae.

Over the years, the State Public Defender program has battled constantly with the Legislature,, and sometimes the Governor's Office, over funding and caseload levels. During the Dreyfus Administration, the battle was over its very survival. In the most recent budget process, the Governor's Office and the Legislature combined to impose some of the most severe restrictions on the program to date.

Staff attorney caseloads were increased dramatically. They were raised past levels criticized in the independent Spangenberg study several years ago as too high which led to legislative reductions in past biennia. They exceed all recognized caseload standards for public defender programs. I have received numerous calls from staff public defenders complaining about their caseloads and work order requirements which prevent them from providing the top quality representation for which the agency has been known. Staff lawyers can no longer be effective in their representation of the poor. The administration of the agency has taken to heart the teachings of the Legislature and Governor and seeks even more ways to limit the reach and effectiveness of its staff and private bar lawyers through limitations on funding for experts and investigators and other restrictions.

The private bar lawyers who took public defender cases have seen the rates of compensation decline to the point where most cannot meet their office overhead costs on public defender cases. Many of the more experienced lawyers who were on the public defender lists have taken themselves out of the program. After participating in the program as a staff attorney for over four years in Milwaukee and as a member of the private bar appointment list for an additional ten years, I no longer accept Public Defender cases because of these changes. Many of those who take such cases are young and inexperienced and do not know how to obtain the services needed to effectively represent their clients.

In addition, the Legislature imposed flat rate contracting provisions for some misdemeanor cases which pay private bar lawyers small sums per case, but guarantee a large volume of cases to make up the difference. The ethical problems with this system are well documented, but have been ignored by the Legislature and denied by the agency administration. The inevitable ineffective assistance of counsel claims which this system compels are just now starting to surface.

Finally, the Legislature mandated changes in the standards by which indigency is determined, lowering significantly the number of people served by the agency. Now the agency ignores the Federal Poverty Guidelines and even the standards contemplated by the vaunted W-2 program and eliminates most of the working poor from entitlement to representation by counsel to defend their liberty. In some cases, the Legislature just eliminated representation all together.

These costs will ultimately be shifted to the counties as judges recognize the constitutional right to counsel is not governed by legislativley imposed criteria. If one cannot afford to hire a lawyer, the court must appoint one, irrespective of the public defender standards. This may well take us back to the closed list appointments and disparate treatment across county lines which the agency was created to eliminate. It has already led to disparate treatment across county lines in the judicial appointment of counsel. Some trial judges appoint counsel for those who do not meet the new public defender standards and others do not, leaving indigent defendants with no alternative but to proceed pro se. There are no statewide guidelines governing such appointments.

Because the State Public Defender ultimately must fulfill the Sixth Amendment requirements that a poor person accused of crime have the effective assistance of counsel for her defense, it must fall to the judiciary to see that those requirements are met. Usually, this is raised on a case by case basis upon appeal from a criminal conviction, delinquency adjudication or commitment. Because of the understandable hesitancy to overturn such judgments, courts may recognize problems but find them harmless in the individual case. There is little or no opportunity for systemic review and improvement provided in the appellate process.

Poor people accused of criminal activity are not the constituents of many members of the Legislature or the Governor. Being concerned with fiscal issues and responding to society's call to be "tough on crime," it is easy to cut the State Public Defender program and to encourage its administration to find new and innovative ways to further limit services. While staff lawyers were recently given the right to collectively bargain, caseloads are not considered bargainable issues. There is no where for staff and private bar layers concerned about these issues to turn for assistance. This program has been politicized and will soon become ineffective in protecting those least able to meet the power of the State.

The Supreme Court should appoint a special master or commission and order an independent investigation into the organization, administration and funding of the State Public Defender program in light of the applicable constitutional mandates. If the program no longer can meet those mandates, the Court should require reasonable and acceptable levels for caseloads, private bar rates, financial assistance for litigation and solutions for the other problems discovered in the investigation under its supervisory authority over the administration of justice. As a co-equal branch of government whose duty it is to protect constitutional guarantees provided to the poorest citizens, the Court should do no less.