Sept. 8, 2010 – Protecting public safety by adequately funding Wisconsin’s justice system and prudently using court assessments and fees were among the key themes stressed in testimony Aug. 29 at the Legislative Council’s inaugural Special Committee on Criminal Justice Funding and Strategies meeting.

The 16-member panel, which includes both legislative and public members, was created in July by the Wisconsin Joint Legislative Council to study “funding of the criminal justice system and strategies to adequately and sustainably fund the criminal justice system.

The committee also reviewed informational materials compiled by Legislative Council staff and others, including Staff Brief 10-02, Funding of State Criminal Justice Functions.

That report summarizes 2009-11 state appropriations for district attorneys, the State Public Defender (SPD), the court system, the Office of Justice Assistance (OJA) and selected Department of Justice (DOJ) appropriations.

The report only covers state funding for these purposes and does not encompass local government expenditures for such needs as jails, law enforcement, and support staff for district attorneys and circuit courts.

The document notes that total 2009-11 biennial state funding for criminal justice activities is $65.8 million. Of this total, 42.1 percent is general purpose revenue (GPR); 27.7 percent is federal revenue; 13.2 percent is program revenue; 11.6 percent is segregated revenue; and 5.4 percent is bond revenue. These judicial and legal service appropriations constitute 1.8 percent of GPR (by comparison, correctional services constitute 7.2 percent of GPR).

Need for adequate funding stressed by chief justice

In her remarks to the committee, Chief Justice Abrahamson stressed the importance of adequately funding all components of the justice system.

“Although we are, of course, concerned about state support for the court system, we also have broader concerns about the funding of the criminal justice system,” Abrahamson said. “The court system is part of a larger, interrelated criminal justice system. Our courts become backlogged when other justice partners, particularly the district attorney and public defender offices, lack resources.”

Abrahamson recounted past efforts in meetings with legislators, the Governor, and others to build support for adequate staffing and funding of district attorney and SPD programs.

“A circuit court cannot function in many criminal cases unless a prosecutor and defense counsel are present,” she said. “It is important not only to have adequate staffing in these offices but also to retain experienced prosecutors and public defender defense counsel by providing these attorneys with adequate compensation.”     

The Chief Justice also urged the committee to closely review the expansion and use of court surcharges. She noted that when the Circuit Court Support and guardian ad litem (GAL) payment programs were created in 1993, they were funded through a new court support services surcharge (CSSS) on court fines and forfeitures.

“Counties had hoped these state financial assistance programs would shift an equitable portion of the funding of the circuit courts from property taxes to the State,” the chief judge noted. “However, over the years additional funding was not provided to offset increasing costs at the county level even as the number of circuit court branches and CSSS revenues increased.”

Abrahamson told panel members that only $23.2 million of the $51.7 million collected through CSSS in FY 2009-10 was appropriated for the court support programs (the remaining $28.5 million went to other GPR-funded programs). 

Recent trends raise concerns

The Chief Justice also expressed concerns about the expanding use of court surcharges and fees over the years.

“It seems that every new program remotely connected to the justice system is now funded with new or increased surcharges or fees,” Abrahamson noted. “We all must be cognizant that access to the court system cannot be reserved only for those who can pay. The continued proliferation of surcharges both jeopardizes access to the court system and questions the fairness of our penalty structure – the punishment may no longer fit the offense.”

She also warned that higher surcharges impose a growing financial burden on many citizens.

“The ability to pay has not increased along with these increased fees and surcharges; indeed, the troubling fiscal climate has reduced many citizens’ ability to pay. As a result, funding for existing programs is in jeopardy.”

Abrahamson rounded out her testimony by listing several trends that have added stress to the court system. These include growing numbers of individuals in courtrooms who are self-represented, have limited English speaking abilities, or are repeat offenders with alcohol or other drug abuse, or mental health problems.

Prosecutor shortage highlighted by Attorney General

Attorney General Van Hollen also testified at the meeting, and reminded committee members that “law enforcement and public safety is the first priority of government” and that “general purpose revenue is an appropriate source to fund government’s primary responsibility. To that end, I encourage the Committee to resist the temptation to identify special excise taxes or unrelated segregated fees as solutions to funding the criminal justice system.”

Van Hollen stressed that in his frequent contacts with prosecutors and law enforcement, they “identify the shortage of prosecutors as being the number one threat to the State’s ability to adequately and fairly enforce the criminal laws of the state of Wisconsin. This shortage is well-documented and not a recent phenomenon. The effects of the prosecutor shortage can include delayed or less thorough review of complaints, increased incentives to plea and avoid trial, an inability to prosecute all meritorious cases, and an inability to devote the individualized attention to certain cases as justice ideally requires.”

Van Hollen warned that these shortages contribute to “high turnover, and as less experienced prosecutors replace those who have left, the problems intensify.”

The attorney general pointed to Legislative Fiscal Bureau data showing that while the two-year budget passed in 2009 increased state spending by 6.2 percent over fiscal year 2008 levels, the District Attorneys budget was cut by 8.1 percent.

The concern about turnover was reaffirmed by Atty. David Feiss, President of the Association of State Prosecutors. In spite of today’s harsh economic climate, he noted, in the past year “nearly ten percent of the approximately 360 Assistant District Attorneys have left.”

Feiss also warned that this increases reliance on relatively inexperienced prosecutors, which “leads to guilty perpetrators being let go and the charging of individuals where evidence will not support a conviction.”

The attorney general also warned that a substantial portion of the District Attorneys budget that had been funded by general program revenue was eliminated, replaced by new fees assessed on utility bills.

“The problems created by this budget approach are clear,” Van Hollen said. “First, the core issue of the prosecutor shortage remains unaddressed. Second, the use of a non-continuing fee transfer jeopardizes ongoing funding of an already underfunded program. Third, according to press reports, using this rate assessment created a conflict between ratepayers, who rightly expect their fees to pay for utilities, and prosecutors, who do not choose their funding sources and who exist to enforce criminal laws, not public utility laws.”

Economic realities impact funding options

While stressing that surcharges and fees are sometimes appropriate for funding criminal justice activities, Van Hollen reminded the committee that it is important to recognize their limitations.

“Defendants, as we know, do not have unlimited resources” he said. “For example, funds paid by a defendant for one type of surcharge might mean there are no funds available for that defendant to pay restitution to the crime victim. I encourage the Committee to thoughtfully examine these implications as they weigh criminal justice funding strategies.”

He also cautioned panel members to critically assess criminal justice system funding options in a realistic economic and budgetary context.

“Revenue streams rarely meet overly optimistic revenue expectations, thus creating deficits,” Van Hollen said. “Deficits lead to increasing surcharges. Increasing surcharges and assessments may have unintended consequences, such as changed enforcement activity or defunding programs paid with surcharges that are further down the chain of priority.”

Most members of the Special Committee on Criminal Justice Funding and Strategies are attorneys, including the Committee Chair, Sen. Lena Taylor, and John Skilton, who represents the State Bar on the panel. The State Bar’s Government Relations Team is also closely monitoring the committee’s work.

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Special committees formed to review major policy issues between legislative sessions - July 28, 2010

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