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  • Wisconsin Lawyer
    March 01, 2015

    Final Thought
    That Guilt Shall Not Escape or Innocence Suffer

    The loss of funding for pay progression for prosecutors jeopardizes the delivery of justice and public safety in Wisconsin. Beyond the cost to justice and public safety, ADA turnover has cost Wisconsin more than $20 million during the past decade.

    Peter M. Tempelis

    A society’s value is judged by the protection it provides the public and its most vulnerable members. The district attorney is charged with protecting the public and pursuing justice.

    In Berger v. United States, 295 U.S. 78 (1935), the U.S. Supreme Court defined the prosecutor’s role as the “representative … of a sovereignty,” who “is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer.” While a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” The prosecutor’s “interest … in a criminal prosecution is not that it shall win a case, but that justice shall be done.”

    Peter M. TempelisPeter M. Tempelis, U.W. 2006, is head of the Domestic Violence Unit and an ADA with the Milwaukee County District Attorney’s Office.

    In Wisconsin, DAs rely heavily on assistant district attorneys to protect the public and pursue justice. According to U.W.-Madison’s Scott Wood, Wisconsin currently has 71 DAs and 330 ADAs, a 10-year low for the latter. Of 347 ADA positions held in 2005, 191 (55 percent) have been vacated since then. The state has hired 406 ADAs in these 191 positions, an average of more than two hires per vacated position, making clear the state’s difficulty retaining ADAs in their first 10 years of service.

    In 2011, the U.W. Robert M. La Follette School of Public Affairs published its findings that a flawed and underfunded compensation system prompted ADAs to leave their jobs. The Wisconsin Legislature then passed 2011 Wisconsin Act 238 (revising Wis. Stat. chapter 230), aimed at curtailing turnover by providing merit-based pay progression to ADAs.

    Former State Bar president John S. Skilton recognized the importance of these statutory revisions in his September 2013 “Final Thought” article, which honored the 50th anniversary of Gideon v. Wainwright, 372 U.S. 335 (1963). Skilton stated, “without retention of experienced, sophisticated public advocates … the criminal justice system cannot purport to provide just results.” He concluded, “effective representation matters because justice matters.”

    The crisis facing prosecutors’ offices is an issue every Wisconsin lawyer can and should address, by informing policymakers of the importance of the role of Wisconsin prosecutors and society’s obligation to ensure they can do justice.

    Despite “progress in the right direction,” the 2015-17 budget proposal lacks funding for ADA pay progression. The program was aimed not at immediately reducing turnover but at doing so over time. Actions taken by Gov. Walker and the legislature on the budget bill will determine whether Wisconsin remains committed to being a nationally recognized leader in criminal justice administration – not only by being the first state to codify a crime victim rights law and a pioneer in establishing the office of State Public Defender but by ensuring just results by providing “effective representation” on behalf of the public and crime victims.

    Beyond the cost to justice and public safety, ADA turnover has cost Wisconsin more than $20 million during the past decade. The crisis facing prosecutors’ offices is an issue every Wisconsin lawyer can and should address, by informing policymakers of the importance of the role of Wisconsin prosecutors and society’s obligation to ensure they can do justice.

    The author thanks Scott Wood of U.W.-Madison for his research and analysis of Wisconsin Department of Administration data. The statistics are his work product, which he presented to the Executive Board of the Wisconsin District Attorneys Association in February.



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