The Office of the State Public Defender (SPD) provides legal representation for persons who are accused of crimes or are defendants in certain specified civil matters, and who meet statutory financial eligibility criteria.

The SPD was created by statute in 1965. Until 1972, the office consisted of one attorney, an employee of the Wisconsin Supreme Court, who represented indigents seeking post-conviction relief. Counties were responsible for indigent defense at the trial level, which was provided by assigned counsel. The SPD became an independent agency in 1977, and gradually began to represent indigents at the trial level (still with private attorneys). In 1979, the state provided funding for the public defender program and established a certain proportion of each county’s indigent cases to be handled by public and private counsel. The program had a sunset date of November 1985, at which time the appointment of indigent defense would have reverted back to exclusive appointment of private attorneys. In 1985, the sunset was repealed and the SPD’s responsibilities were expanded from 47 counties to the entire state.

The SPD is overseen by the Public Defender Board, which consists of nine members appointed to three-year terms by the Governor with the advice and consent of the Senate. At least five of the nine must be members of the State Bar of Wisconsin. The Public Defender Board appoints the State Public Defender.

The 1995-97 biennial budget act, 1995 Wisconsin Act 27, required the SPD to implement new programs for collections, verification, and assignment of private bar cases based on efficiencies. Act 27 also required that the State Public Defender Board enter into annual fixed fee contracts with private attorneys and law firms for some cases. Act 27 eliminated SPD representation in cases involving conditions of confinement, early representation (later restored in 2001 Wis. Act 16), most sentence modifications, and certain appeals. In addition, representation was limited for paternity and non-payment of child support cases, probation and parole modifications, and revocations. Representation was also eliminated for parents whose children are involved in CHIPS proceedings.

The SPD consists of four divisions (trial, appellate, administrative, and assigned counsel) and three offices (legal counsel, training and development, and information technology).

The Trial Division includes 318.7 attorneys who provide legal representation to eligible persons charged with adult crimes or juvenile offenses punishable by imprisonment, facing involuntary commitment, involved in certain family disputes, such as termination of parental rights, or subject to a revocation hearing in which incarceration is sought. The annual caseload for Trial Division attorneys is set by statute, for budgeting purposes, as follows: (1) 184.5 felony cases; (2) 15 homicide or sexual predator cases; (3) 492 misdemeanors cases; (4) 246 other cases; or (5) some mix of these categories.

The Appellate Division includes 27.5 attorneys who provide assistance to indigents involved in appeals, including post-conviction and post-commitment proceedings.

The Administrative Division is responsible for providing staff support services in areas such as human resources, payroll, budget preparation and analysis, accounting and purchasing, and collections and verification.

The Assigned Counsel Division oversees certification, appointment, and payment of private attorneys who represent SPD clients. Private attorneys are paid in two ways: (1) an hourly rate; or (2) a flat, per case contracted amount (misdemeanor cases only). Before 1995 Wis. Act 27, private attorneys were paid $50 per hour for in-court time, $40 per hour for out-of-court time, and $25 per hour for certain travel. Under Act 27, the in-court rate was reduced to $40 per hour, which has not been modified since.

The 1999-2001 biennial budget bill returned responsibility for all facets of information technology to the SPD from the Bureau of Justice Information Systems in the Department of Administration. In addition to successfully accomplishing agency-wide implementation of state-standard hardware and software, the SPD developed and implemented a new management information system and began installation of a wide area network during that biennium.

The 2001-03 biennial budget bill (2001 Wis. Act 16) authorized the SPD to again provide “early representation” (i.e., representation before the client has been charged or jailed). Early involvement in cases often results in charges being dismissed or reduced, which reduces the cost.

2007 Wisconsin Act 20 eliminated the need for eligibility determinations for adults subject to involuntary civil commitment, protective placement, or involuntary administration of psychotropic medication effective July 1, 2008.

Under 2009 Wisconsin Act 164 the outdated financial eligibility standards for adults in criminal cases and in proceedings other than those noted in the preceding paragraph changed on June 19, 2011, and are based on the Wisconsin Works (W-2) program. Act 164 authorized 45.4 FTE to allow the SPD to appoint staff attorneys in 75% of the projected 12,800 additional cases; the remainder will be appointed to private bar attorneys.

Prior to Act 164, the SPD determined client financial eligibility based on an analysis of the applicant’s income, assets, family size, and, under current law, essential expenses. Because these standards were based on the obsolete AFDC guidelines, a person with an income level significantly below the federal poverty guidelines would not meet the eligibility standards for SPD representation, yet could not afford to hire a private attorney. In such cases, the court appointed an attorney at county expense to satisfy the individual’s constitutional right to counsel. The use of the eligibility standards in Act 164 is saving county expenditures for indigent defense.