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    Guest Editorial: Empty Pockets and Overfilled Dockets: Prosecutors Leaving the Profession

    A Wisconsin Legislative Audit Bureau report shows that the state cut prosecutor positions at a time of increased crime statewide. Increased caseloads and a lack of pay progression caused more than half the assistant district attorneys to leave the profession within the last six years. The high turnover and prosecutor shortage have now developed into an unmanageable crisis in our criminal justice system as crime victims and law enforcement officers are underserved.

    Winn S. Collins

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 81, No. 3, March 2008

    Empty Pockets and Overfilled Dockets: Prosecutors Leaving the Profession

    A Wisconsin Legislative Audit Bureau report shows that the state cut prosecutor positions at a time of increased crime statewide. Increased caseloads and a lack of pay progression caused more than half the assistant district attorneys to leave the profession within the last six years. The high turnover and prosecutor shortage have now developed into an unmanageable crisis in our criminal justice system as crime victims and law enforcement officers are underserved.

    by Winn S. Collins

    When Julie graduated from Marquette University Law School, she eagerly awaited the start of her prosecuting attorney career, which she began in June 2001.1 Over the next several years, Julie impressed the district attorneys she worked under, resulting in her quick advancement from handling misdemeanors to handling felonies. By 2007, she handled more felony sexual assault cases than any other prosecutor in the county. During this same period, the number of prosecutors in the county decreased and Julie's salary hovered only slightly above the minimum paid to an attorney with no experience. In August 2007, Julie joined a growing number of attorneys who are leaving prosecution instead of remaining in a profession marred by frozen salaries and evaporating positions. Julie found work as a public sector attorney in another practice area and received a more manageable caseload and a 35 percent pay raise above her prosecutor salary.

    Prosecution Program in Crisis

    The Wisconsin criminal justice system experienced a dramatic rise in the number of criminal cases filed from 2001 to 2005 with felony cases increasing by 16.2 percent and the overall criminal caseload increasing by 11.5 percent, as shown in Figure 1.2

    Figure 1
    Number of Prosecutor Positions Relative to Criminal Caseloads
    Number of
    Prosecutors
    2001 2002 2003 2004 2005 2006 Percentage
    Change
    GPR-funded
    Positions
    ... 390.40 390.40 375.40 375.40 376.40 -3.6%
    PR-funded
    Positions
    ... 53.95 57.00 56.10 51.75 48.25 -10.6
    Total
    ...
    444.35
    447.40
    431.50
    427.15
    424.65
    -4.4
                   
    Type of Case 2001 2002 2003 2004 2005 2006 Percentage
    Change
    Felony 30,455 32,453 32,641 33,582 35,399 ... 16.2%
    Misdemeanor 68,223 69,527 71,157 70,039 71,518 ... 4.8
    Criminal Traffic 36,925 46,420 53,776 52,040 46,696 ... 26.5
    Juvenile Delinquency 14,204 13,949 13,950 13,265 13,365 ... -5.9
    Total 149,807 162,349 171,524 168,926 166,978 ... 11.5

    In contrast, from 2002 to 2006, the state of Wisconsin (the state) decreased the number of prosecutors by 4.4 percent. Reducing state prosecutors at a time of rising crime increased the caseload for each prosecutor. The current burdens faced by prosecutors and others led an appellate judge in an unpublished decision to plead with the Wisconsin Supreme Court to "determine whether the caseload burdens on prosecutors and defense lawyers prevent or interfere with the lawyers' ability to fully represent their clients."3 The judge cited a decision in which a court intervened to install air conditioners in a courthouse when stating that "[t]he ability of lawyers to fully represent … the State of Wisconsin, is at least as critical to the functioning [of] our system of justice as is the availability of air conditioning."4

    In July 2007, the state received a report published by the nonpartisan Legislative Audit Bureau (LAB) that confirmed prior suspicions that a widespread shortage of prosecutors existed in nearly every county.5 The study concluded that, as of mid-summer 2006, the state funded only 76.2 percent of the needed prosecutor positions.6 Most of the funded positions received general purpose revenue (GPR) and the remaining funded positions received program revenue (PR), as shown in Figure 2. Positions funded by PR commonly rely on grants and other unstable sources for funding, thereby making PR positions unstable and subject to future cuts versus positions funded by the more stable GPR funds.

    Figure 2
    Number of Prosecutor Positions Needed for Full Staffing
    Proseutor Positions
    2006
    Percentage of Total
    GPR (Funded) 376.40 67.6%
    PR (Funded) 48.25 8.6
    WCF (Unfunded) 117.33 21.1
    WM (Unfunded) 15.00 2.7
    Total 556.98 100.0

    The LAB report showed that the state failed to fund 23.8 percent of the prosecutor positions needed in 2006. The shortfall occurred because the state did not create positions needed according to a weighted caseload formula (WCF), and the state did not adjust workload measures (WM) when law changes increased demands on prosecutors.

    Following the release of the LAB report, the Association of State Prosecutors (ASP) released data showing that more than 180 assistant district attorneys left employment as prosecutors within the previous six years, a turnover rate of more than 50 percent.7 The ASP explained that the state weakened a previous pay progression system in 2001 and removed the system entirely in 2003, which essentially froze prosecutor salaries and provided no increase in salary for experience and merit. Before the turnover data was released, the Milwaukee Journal Sentinel documented the stories of several prosecutors forced to work part-time, evening jobs because of the lack of pay progression.8

    Public Safety Suffers Under the Crisis

    The current prosecution crisis threatens public safety by decreasing the amount of time a prosecutor can spend working with law enforcement officers. The LAB report explained that a typical prosecutor spends 24.0 percent more time investigating cases with and training law enforcement officers than he or she spends on all traffic and forfeiture cases combined. The cut in prosecutors decreased not only the amount of time a prosecutor may spend on a given case, but also the amount of time available for a prosecutor to work with officers. In October 2007, Milwaukee Police Department captain James Harpole and officer Jim McNichol testified before a legislative committee about how the prosecutor shortage undermined crime prevention programs.9 Similarly, Wisconsin Attorney General J.B. Van Hollen recently explained that the prosecutor shortage, when combined with compensation issues, slowed the processing of criminal caseloads and threatened public safety within communities.10

    Winn Collins

    Winn S. Collins, U.W. 2003, is the Green Lake County district attorney and serves on the boards of the Wisconsin District Attorneys Association (WDAA) and the Wisconsin Law Enforcement Officers Association (WLEOA). He previously served as a worksite contact for the Association of State Prosecutors (ASP) when he worked as an Outagamie County assistant district attorney. The author's views do not necessarily reflect the views or policies of the WDAA, the WLEOA, and the ASP, or their members.

    The prosecutor understaffing and turnover also worsened the services provided to crime victims. A state statute declares "that the state has a moral responsibility to aid innocent victims of violent crime," but the prosecutor shortage clearly inhibits the state from fulfilling this responsibility.11 A member of the Wisconsin Victim/Witness Professionals Association recently confirmed that the prosecutor "crisis has a direct impact on the victims and witnesses of crime because even the most courteous and compassionate prosecutor cannot fully serve a victim or witness under the current system."12 The executive director for the Wisconsin Coalition Against Sexual Assault made a similar statement: "A shortage of prosecutors means fewer prosecutions of sex offenders, a decrease in community safety, and a loss of trust in the justice system by victims."13 The LAB report confirmed that the prosecutor shortage could result "in cases not being prosecuted because of an inability to contact the involved parties or conduct necessary follow-up investigation." The state's resistance to fully fund prosecution has eroded crime victims' confidence in the Wisconsin criminal justice system.

    Additional Funding Needed to Resolve the Crisis

    To rectify the crisis, the state needs to fund all unfunded positions and fund a pay progression system to retain experienced prosecutors. A recent estimate predicted that resolving the prosecution crisis requires less than $15 million in annual funding, which equates to less than $3 annually from each person in the state.14 Despite the modest cost, the state budget passed in October 2007 failed to make any significant change; the budget only funded 5.75 new positions with no funding set aside to reinstate pay progression.15 The state's continued reliance on PR funding likely will negate the modest increase in positions at the start of this biennium because the LAB report predicted a reduction in five such positions by the end of 2007, based on anticipated PR funding cuts. In 2008, additional prosecutor positions will lose funding, which likely will result in further reductions in the number of prosecutor positions statewide.16

    Despite future cuts looming, the crisis may improve within the coming year if the Joint Legislative Audit Committee takes action.17 At a hearing on Oct. 18, 2007, 18 speakers, including law enforcement officers and a victim service provider, joined with prosecutors to explain the firsthand consequences of the crisis.18 After the hearing, Sen. Jim Sullivan (D-Wauwatosa) introduced Senate Bill 497, which transfers approximately one half of the PR prosecutor positions to GPR positions, but the legislation does not fund any presently unfunded positions. According to the Wisconsin State Journal, Rep. Suzanne Jeskewitz (R-Menomonee Falls) recently stated that lawmakers should consider increasing resources and funding for the prosecution program.19 Sen. Sullivan and Rep. Jeskewitz cochair the committee, which now awaits a March 14, 2008 deadline it imposed on the Department of Administration to report on recommendations to improve the plight of the prosecution program. Following that report, the committee has the opportunity to recommend statutory and budgetary changes needed to rectify the prosecution crisis by funding the presently unfunded positions and reinstating pay progression.

    Conclusion

    The Joint Legislative Audit Committee has the opportunity to solve one of the greatest crises to confront the Wisconsin criminal justice system this decade. The committee members should recommend the reinstatement of pay progression and full funding for all needed prosecutor positions. The state budget perpetuated the current prosecution crisis by essentially freezing positions at current levels with additional cuts likely during this year. Without statewide action, Wisconsin will continue to experience the rampant turnover that worsens services to law enforcement and crime victims. Wisconsin already has lost too many skilled prosecutors like Julie who possessed the experience needed to serve in a professional and competent manner. In the coming months, lawmakers must decide whether to uphold the promise it codified in our statutes that "the state should provide sufficient assistance to victims of crime."20 Failure to act will perpetuate a system marred by prosecutors leaving the profession because they cannot endure empty pockets and overfilled court dockets.

    Endnotes

    1See generally email from Phil Werner, State Prosecutors Office, Wis. Dep't of Admin., to Winn Collins, District Attorney, Green Lake County (Nov. 9, 2007) (on file with author). (The author supplemented the material in the email with telephone and electronic communications in November 2007 with the named individual to ensure the accuracy of the information.)

    2Legislative Audit Bureau (LAB), An Evaluation: Allocation of Prosecutor Positions, Report 07-9, at 16, 21 (July 2007),available at www.legis.wisconsin.gov/lab/reports/07-9Full.pdf (hereinafter LAB Report 07-9).

    3In re Commitment of Stokes, No. 2004AP1555, 2007 WL 521243, ¶ 102 (Wis. Ct. App. Feb. 21, 2007) (Fine, J., concurring) (review denied) (unpublished).

    4Id. ¶ 103 (citing Barland v. Eau Claire County, 216 Wis. 2d 560, 575 N.W.2d 691, ¶ 37 (1998)).

    5LAB Report 07-9, supra note 2.

    6Id. at 4-5, 37.

    7Press Release, Association of State Prosecutors, Association of State Prosecutors Urge Audit Committee and Legislature to Address Crisis in Justice System (Oct. 18, 2007) (on file with author).

    8Derrick Nunnally, Prosecutors' Pay Raises Objections: Stagnant Salaries Push Some to Take Second Jobs, Milw. J. Sentinel, Dec. 25, 2005, available at www.jsonline.com/story/index.aspx?id=380436.

    9Press Release, Wisconsin District Attorneys Association, Audit Hearing Confirms Victims Suffer Under Prosecutor Shortage: District Attorneys Short by Over 132 Prosecutors (Oct. 22, 2007) (on file with author) (hereinafter WDAA Press Release).

    10Letter from J.B. Van Hollen, Attorney General, Wis. Dep't of Justice, to members of the Joint Committee on Audit (Oct. 18, 2007) (on file with author).

    11Wis. Stat. § 949.001.

    12Letter from Llonda Thomas, member, Wisconsin Victim Witness Professionals, to Sen. Jim Sullivan & Rep. Suzanne Jeskewitz, Wis. Legislature (Oct. 18, 2007) (on file with author).

    13Press Release, Wisconsin Coalition Against Sexual Assault, Inc., WCASA Calls for More Prosecutors (Oct. 19, 2007) (on file with author).

    14Email from Tim Baxter, president, WDAA, to Phil Werner, State Prosecutors Office, Wis. Dep't of Admin. (Nov. 13, 2007) (dividing the $12,323,935.30 cost for 132.33 new positions along with converting 54 program revenue to general purpose revenue by a 2006 population estimate of 5,617,744) (on file with author); see also email from Michelle Mettner, attorney, Broydrick & Associates, to Winn Collins, district attorney, Green Lake County, Wis. (Nov. 15, 2007) (estimating that reinstatement of pay progression would, in the first year, cost $1 million, which then could be divided among all state residents for purpose of calculating average cost) (on file with author).

    15Wisconsin Legislative Fiscal Bureau, 2007-09 Wisconsin State Budget: Committee of Conference Summary of Budget Provisions, at 240-42 (Oct. 2007), available at www.legis.state.wi.us/lfb/2007-09budget/Conference%20Committee/das.pdf;see also email from Phil Werner, State Prosecutors Office, Wis. Dept. of Admin., to Winn Collins, district attorney, Green Lake County, Wis. (Nov. 14, 2007).

    16Jason Stein, Prosecutor Cuts May Strain System, Wis. St. J., Jan. 8, 2008, available at www.madison.com/wsj/mad/top/index.php?ntid=266020;see also Editorial, Don't Rely on the Feds: The State Must Pick Up the Slack so District Attorneys Can Continue to Pursue Community-Based Solutions to Crime, Milw. J. Sentinel, Jan. 9, 2008, available at www.jsonline.com/story/index.aspx?id=705432.

    17For a broadcast of the audit hearing, see WisconsinEye Public Affairs Network, Inc., available at www.wisconsineye.com/wisEye_programming/ARCHIVES-committees.html.

    18WDAA press release, supra note 9.

    19Stein, supra note 16.

    20Wis. Stat. § 949.001.




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