David Michael Miller
John Anderson’s weeks blur together as the lone judge in Bayfield County. The largely rural county sits at the top of Wisconsin and is home to hundreds of miles of trails, some of the Apostle Islands, and 15,000 residents. But there are just 14 active attorneys.
In Anderson’s courtroom, one scenario unfolds over and over: Nonviolent drug offenders file into court without a lawyer, Anderson tells them to contact an attorney and then they are released on a signature bond. They’re due back in court in two weeks for another hearing, and possibly an offer for treatment if they’re able to find a lawyer.
But they often don’t last that long. The offender often ends up back in Anderson’s courtroom in a week on bail-jumping and more serious felony charges, with no representation. Now the opportunity for treatment is gone.
“That happens every week,” Anderson says. “Somebody is put back into the community with a serious drug or alcohol problem, waiting to get their lawyer, and then they reoffend.”
Like much of the state, Bayfield has faced serious, and worsening, problems with meth and opioid addiction, leading to many overdoses a year.
But unlike Wisconsin’s more affluent counties, Bayfield is also facing a shortage of lawyers to take up public defender cases, resulting in a backlog that lengthens delays for treatment and leaves people in jail awaiting trial.
Instead of people getting assigned a public defender within days of being arrested and charged, it can take four, six or even eight weeks. This gap in defense leaves people addicted to opioids or meth in a high-stress situation, without treatment options. If they do get assigned representation, it can be from an inexperienced attorney.
These problems, which disproportionately affect low-income people, are not isolated to Bayfield. Many rural areas in Wisconsin can’t keep up with an ever-increasing number of criminal cases involving meth and opioid use, according to a dozen people interviewed for this story, including a judge, public defenders, district attorneys and law enforcement officials. The problem is caused in part by a national decline in the number of law school applicants — at UW Law School, enrollment has dropped by about a third over the past decade. But in Wisconsin, the lack of lawyers is exacerbated by the fact that the state pays the lowest rate in the country for court-appointed attorneys.
In 2011, the Wisconsin Supreme Court sounded an alarm about the situation: “If this funding crisis is not addressed we risk a constitutional crisis that could compromise the integrity of our justice system.”
That was before the opioid epidemic exploded — and with it rural counties’ criminal caseloads. From 2000 to 2016, overdose deaths from prescription opioids throughout the state increased 600 percent, from 81 to 568, according to Gov. Scott Walker’s office. Fatal heroin overdose deaths jumped from 28 to 371 in the same time period.
John Anderson, Bayfield County’s lone judge, has seen an explosion in cases involving addiction. “If we do not solve this problem soon, we are going to reach a constitutional crisis.”
To deal with the sudden influx of cases over the last several years, politicians, lawyers and advocacy groups are all putting forward ideas for funding fixes that would help ease the problem. A new bipartisan bill calls for a tiered system of payments to court-appointed attorneys with the highest hourly rate at $70; a petition from a Wisconsin group of lawyers puts the flat rate at $100 an hour.
Anderson fears that more people will suffer and die if changes aren’t made.
“If we do not solve this problem soon, we’re going to reach a constitutional crisis in this state. We will have people sitting for weeks and perhaps months without counsel,” says Anderson. “We’re already there.”
Milwaukee attorney John Birdsall often gets calls from faraway corners of Wisconsin. Frequently it’s someone from a public defender’s office asking him, a private attorney, to work as a public defender on a serious criminal case, like a murder, that recently happened in that county.
Sometimes the call goes out because the office is facing a backlog of cases and simply can’t afford to dedicate one of its own attorneys to a lengthy case. Or it could be because none of the attorneys in the office has enough experience to provide adequate representation.
Whatever the reason, Birdsall almost always turns them down. He says he just can’t justify taking a case where he’ll be paid $40 an hour. Many lawyers say the same. A 2015 report from the Boston-based Sixth Amendment Center shows the average overhead cost for running a law practice in Wisconsin is $41.79 an hour.
Wisconsin’s rate has stayed virtually the same since Anderson started practicing law in 1983. Following a couple of short-lived raises, pay for court-appointed attorneys has been stuck at $40 an hour since 1995 — and $25 an hour for travel.
“It’s not a reasonable amount. There aren’t people willing to do it, and I certainly understand why they’re not willing to do it,” says Kelly McKnight, the Ashland County district attorney. “What it’s creating for us in the criminal justice system is really almost a constitutional crisis.”
In Ashland County, which neighbors Bayfield, the criminal caseload has roughly tripled in size during the past six years, says McKnight. He blames the jump “almost entirely” on meth and opioid use. During the same time, there’s been no significant increase in staffing for Ashland’s public defender’s office, according to McKnight.
“The system is nearing the breaking point,” McKnight says.
He doesn’t blame private attorneys for not taking the cases, which would pay a third or maybe even a fifth of what they usually make. But McKnight says a backlog like this doesn’t mean he can stop charging people.
“It creates problems for the defendants who sit in jail still enjoying the presumption of innocence,” McKnight says. “It’s problematic for victims of crimes, who want their cases solved.”
Ashland started reaching out to attorneys in Superior, which is about 50 miles away, several years ago. Now, there are no longer enough lawyers there to fill the gaps. The county now goes as far as La Crosse, Eau Claire — even Madison in some cases — to try to find attorneys to keep cases moving.
And the farther away the search, the tougher the sell. During the five-hour drive from Madison to Ashland, or six-hour drive from Milwaukee, lawyers would be pulling in the $25 hourly travel rate.
“Can you imagine driving up north around winter? That’s financially unsustainable, frankly,” Birdsall says. “Most misdemeanors in up north counties ... people end up pleading without a lawyer.”
The private attorneys who do accept felony cases are either doing it out of a sense of duty or because they’re inexperienced, Birdsall says.
Bev Kelley-Miller, left, with daughter Megan, who died of an overdose in 2015. Kelley-Miller says Megan missed out on treatment due to an inexperienced lawyer.
Bev Kelley-Miller knows the problems inexperienced lawyers can cause for people with drug addictions.
Her daughter Megan Kelley was arrested in 2014 in Outagamie County and charged with four felonies — three involved the manufacturing and distribution of heroin. The family hired a private attorney but Kelley-Miller says he misled them. She says their attorney promised Megan would be eligible for treatment from the get go. Instead, her daughter was in and out of jail for the next year and never got treatment.
Throughout the tumultuous year after her initial arrest, Megan contended with court dates, more arrests, and relapses. She died from a heroin overdose at age 22 in April 2015.
Since her daughter’s death, Kelley-Miller has advocated for people with addiction in central Wisconsin, becoming active with the group ESTHER, which focuses on prison reform. “My voice is small, but when you’re with a group it’s louder,” Kelley-Miller says.
“You can’t arrest and incarcerate your way out of addiction. If you incarcerate them, they are an addict when they go into jail and if you do nothing with them, they are the same addict when they come out of jail,” Anderson says. “Nothing has changed. It’s a static matter. It simply does not change.”
Dr. Aleksandra Zgierska says that getting people into treatment would lower recidivism and death rates. “People who are not treated are quite likely to die.”
Getting someone suffering from addiction into treatment can mean the difference between life and death, says Dr. Aleksandra Zgierska, president of the Wisconsin Chapter of the American Society of Addiction Medicine.
Zgierska, an assistant professor at UW-Madison, says early and effective treatment is key, but many people aren’t getting it.
“Appropriate care could prevent the revolving doors of recidivism but also just death,” Zgierska says. “People who are not treated are quite likely to die.”
Courts have the power to force people into treatment. And drug courts in Wisconsin often incorporate medication, which Zgierska says is vital for those addicted to opioids.
Adult drug courts in the state are typically lengthy, often running as 12- to 18-month programs. The programs come with an offer to either reduce or drop charges if the offender completes treatment. They are an effective way to cut prison costs and reduce how often people reoffend, research shows. Each drug court is different, and Wisconsin has more than 30 of them — a big increase from even a decade ago.
Bayfield County doesn’t technically have a drug court. But Anderson says it has a hybrid program that admits some violent offenders.
Treatment programs are a good way to avoid prison — and get help. But the catch is you need a lawyer to even get the offer. And with that problem, many drug courts in Wisconsin might actually be failing one of the state’s 10 standards for these problem-solving courts: “Eligible participants are identified early and promptly placed in the drug court program.”
“Promptly” isn’t defined, but in Bayfield — where getting a public defender can take up to six weeks — Anderson isn’t sure if they, or other drug courts in the state, are meeting those standards. Ideally, the enrollment process should take a week if everything is going well, he says. The problem? Things haven’t been going well.
“Those three to six weeks mean the difference between effective treatment and ineffective treatment,” Anderson says.
Ashland County DA McKnight says he worries that the effect of the lawyer shortage on an escalating opioid crisis will erode the public’s trust in Wisconsin’s criminal justice system. But as of now, he’s not even sure if people are aware of the issue.
“I don’t think the community is generally in tune with what’s going on,” McKnight says. “This is not a glamorous or glitzy issue that gets headlines or people get interested in.”
Wisconsin Bar Association, 2017 data
The state’s attorney shortage is acute in rural counties.
One move could immediately help ease the backlog of cases around the state — hiking the long stagnant hourly rate for court-appointed attorneys. The Office of the State Public Defender has been pushing for a raise since 1995 — when the Legislature dropped the rate from $50 an hour to $40.
Calls for a pay hike are again being made — and it’s a rare bipartisan move for this state Legislature. State Reps. Ron Tusler (R-Harrison) and Evan Goyke (D-Milwaukee) are circulating a bill that would implement a tiered system of payments, with private attorneys either getting $55, $60 or $70 an hour, depending on the severity of the case.
Tusler and Goyke are attorneys, and were in some of the same classes at Marquette University’s Law School. Both legislators took on public defender cases soon after graduating. Goyke, who says he worked “out of the trunk of [his] car” on these cases, can understand how difficult it is for attorneys to take these cases.
Goyke admits giving attorneys more money might not be a popular proposal for politicians to champion. But the bill is desperately needed, he argues, especially for rural Wisconsin areas, which struggle the most with the attorney shortage. The bill already has 15 co-sponsors, including three Republicans, which Goyke hopes will improve its chances of passing.
Last spring, Birdsall and other attorneys throughout the state petitioned the state Supreme Court to increase the rate for court-appointed attorneys to $100 an hour — a rate, Birdsall contends, that would still be low compared to other states. The state Supreme Court has tentatively set a hearing in May to listen to arguments for raising the rate. If the Supreme Court agrees to the raise, it is unclear whether the Legislature would also need to approve the amount.
Goyke says his bill would raise costs by nearly $20 million a year. Raising the hourly rate to $100 would cost the state about $32 million a year, he says.
A 2015 recommendation from the Sixth Amendment Center puts the flat rate at $85 an hour, meeting in the middle of the two other recommendations.
Meanwhile, local agencies continue to scramble to find other ways to address the explosion in criminal cases due to the opioid epidemic.
In Sauk County, many stakeholders — including people from health care, law enforcement, the tribal government, addiction support groups and others — met in 2014 to try to get to the root of the drug problem, or at least find a way to curb it.
As the Sauk Prairie police chief, Jerry Strunz has watched more and more people die of overdoses in his county. The county there began addressing it with more treatment options. One county program offers free vivitrol — a monthly injection that reduces a person’s craving for opioids.
Although it’s usually given to people who have been charged with a crime, the county has also provided it to people who have asked for it, Strunz says. And that’s the goal of the program: to reach people before they start committing serious crimes.
Because the entire community bought in and contributed, costs were low the first year, Strunz says. The results since then, he says, have been promising, with high completion rates for the treatment programs. A federal grant will help pay for the program through August.
Madison offers another model for communities struggling with the crisis. The Madison Addiction Recovery Initiative offers treatment options to people after they are arrested, but before they’re formally charged. This alleviates the need for a public defender or court-appointed attorney.
As soon as a person is arrested, an officer can offer treatment as an alternative to jail. The goal is to provide people with treatment as quickly as possible, says Dan Swanson, a Madison Police Department officer. If the arrestee hasn’t committed a violent crime in three years, hasn’t broken parole and has ties to Dane County, he or she is eligible.
Often they’re enrolled in treatment within 72 hours, leaving only insurance coverage to be worked out.
Dr. Zgierska is helping lead the program, which began in 2016. The results aren’t in yet and the program is regularly being tweaked, she says. But the goal is to both help people get treatment and alleviate the strained court system.
Strunz stresses that programs like the ones in Dane and Sauk counties need to have buy-in from several agencies in order to succeed. “This is a model that can be replicated nationwide and really have a major impact on what we’re dealing with,” Strunz says.
But for now, many people in Wisconsin, especially in rural areas, don’t have access to these programs. Many are sitting in jail, waiting for an attorney to help access treatment. Others are out on bail, struggling alone with their addictions.
Judge Anderson knows, in both cases, their chances are bleak. Without a lawyer to find them a lifeline, very likely they will end up either dead or in prison.
“They don’t have a lawyer to assist them, they don’t have a lawyer to give them advice and talk about the advantages and disadvantages of going into a treatment program,” Anderson says. “They’re likely to just continue to relapse and use drugs. The chances of them committing a more serious crime goes up. At that point, it’s a circular event.”
