Statements of Scope

Creation of a Felony Diversion case category.

Rule Type

Permanent.

1. Finding/Nature of Emergency (Emergency Rule Only)

Not applicable.

2. Detailed Description of the Objective of the Proposed Rule

This proposed rule will revise three sections of the PD administrative code to include a new “felony diversion" case category. This proposed case category will apply to cases in which the SPD and the prosecutor negotiate felony diversion agreements as an alternative to the filing of formal criminal charges.

SPD case categories reflect the anticipated cost of retained counsel and set the required payment amounts for legal representation. The proposed rule adds the felony diversion case category to three schedules: cost of retained counsel, s. PD 3.02 (1); payment for legal representation, s. PD 6.01; and discount option, s. PD 6.02 (1). The SPD currently provides representation in diversion cases within the case category of “special proceedings." The SPD's data for felony diversion cases show that the attorney time required to handle these matters generally exceeds the time required to provide representation in other special proceedings. This new felony diversion case category will more accurately reflect the amount of time attorneys spend when representing clients in felony diversion cases.

The proposed rule will change neither the number nor the nature of cases in which the SPD appoints attorneys.

3. Description of the Existing Policies Relevant to the Rule, New Policies Proposed to be Included in the Rule, and an Analysis of Policy Alternatives

Policies relevant to this rule are consistent with existing polices regarding the cost of retained counsel and payment for legal representation. The anticipated cost of counsel reflects the likely cost for a prospective client to hire a private attorney. The SPD includes this amount in its determination of an applicant's financial eligibility for SPD services. The required payment for legal representation reflects the average attorney costs for the SPD in the respective case categories.

The anticipated cost of retaining counsel in special proceedings is $750, which reflects the expectation that these case categories are less time-intensive than most other cases. A felony diversion case category will reflect the greater time generally required to provide representation in the diversion of potential felony charges. The anticipated cost of retaining counsel for this new case category will be $1,500, which is a lower cost than the $2,200 to $17,500 for other felonies, but more than the $750 for special proceedings. s. PD 3.02 (1).

The payment for legal representation in felony cases is $480 to $7,500, and for special proceedings it is $120; the payment for Felony Diversion cases will be $240. The discount payment for felony diversion cases will be $60, which is the same as other felony cases. ss. PD 6.01 and 6.02 (1).

The SPD role in these felony diversion cases encompasses initial review with the client of the potential charges, negotiations leading to a diversion agreement, and follow-up with the client to assist the client in meeting the conditions of the agreement. The follow-up includes encouraging client participation in treatment and other programming, documenting client compliance, and reporting the client's progress to the District Attorney's office.

As part of the trend toward adopting evidence-based practices within the justice system, some counties have significantly expanded the use of pre-charging diversion agreements. These agreements generally occur after an arrest and after negotiations between the defense attorney and the prosecutor. Although diversion has historically been more prevalent in misdemeanor case, Milwaukee County has in recent years successfully diverted hundreds of potential non-violent felony charges. The SPD anticipates that other counties will follow this example and expand diversion of potential felony cases.

4. Detailed Explanation of Statutory Authority for the Rule (Including the Statutory Citation and Language)

The state public defender provides legal services for indigent individuals involved in the criminal justice system under ch. 977, Wis. Stats. This chapter requires the state public defender board to consider the anticipated costs of effective representation for the case category in which the person seeks representation and to promulgate rules for payments to the state public defender for that representation.

Section 977.02 (3) (a), Stats., requires the public defender board to consider the anticipated costs of effective representation for the type of case in which the person seeks representation.

Section 977.02 (4m), Stats., requires the state public defender board to promulgate rules for payments to the state public defender under s. 977.075, Stats.

Section 977.075, Stats., requires the state public defender board to establish by rule a fee schedule that sets the amount that a client responsible for payment shall pay for the cost of the legal representation if the client does not pay the applicable discount fee. The schedule must establish a fee for a given type of case, and the fee for a given type of case must be based on the average cost, as determined by the board, for representation for that type of case.

5. Estimate of Amount of Time that State Employees Will Spend Developing the Rule and of Other Resources Necessary to Develop the Rule

The proposed rule will require minimal state employee time. The proposed rule adds the felony diversion case category to three schedules: the cost of retained counsel, s. PD 3.02 (1); payment for legal representation, s. PD 6.01; and discount option, s. PD 6.02 (1).

6. List with Description of all Entities that may be Affected by the Proposed Rule

This rule is applicable only to individual SPD clients. The rule will require individuals who are represented in felony diversion cases to pay $240 toward the cost of their representation, which is lower than for other felony cases. This increased cost reflects the significant time attorneys invest in felony diversion cases. Clients also have the option to pay a lower discount amount of $60 as provided in s. PD 6.02 (1).

7. Summary and Preliminary Comparison with any Existing or Proposed Federal Regulation that is Intended to Address the Activities to be Regulated by the Proposed Rule

The SPD is not aware of any existing or proposed federal regulation that addresses the case categories of the Wisconsin SPD.

8. Anticipated Economic Impact of Implementing the Rule (Note if the Rule is Likely to have a Significant Economic Impact on Small Businesses)

As this rule would impact only individual clients of the SPD, there is no anticipated economic impact of implementing the rule. There is no likelihood of a significant economic impact on small businesses.

Contact Person

Devon M. Lee, Legal Counsel, 315 N. Henry Street, 2nd Floor, Madison, WI 53703. [phone]. [e-mail].