Without much fanfare, Gov. Walker recently signed into law revisions to Wis. Stat. chapter 230. These revisions provide for a merit-based pay progression plan for assistant district attorneys (ADAs), assistant attorneys general (AAGs), and assistant state public defenders (ASPDs). These revisions were overwhelmingly supported by our state legislature. They seek to stem the tide of more than a decade of high turnover within the ranks of prosecutors and public defenders at the trial and appellate levels.
John S. Skilton, U.W. 1969, is a partner in the patent litigation practice in the Madison office of Perkins Coie. He is a former president of the State Bar of Wisconsin.
"Effective representation matters because justice matters."
In 2011, the U.W.’s Robert M. La Follette School of Public Affairs – founded on the “Wisconsin Idea” – published findings on a study of ADA staffing. Chief among them was that a flawed and underfunded compensation system prompted ADAs to leave their jobs within the first five years of service. Of 330 ADAs, 246 left their positions between 2001 and 2007 – that is, a 75 percent turnover rate.
Based on this study and prompted by the tireless advocacy of public sector lawyers, the legislature and the executive branch began to take notice. The foundational question was: “What does it mean if the public, crime victims, and indigent defendants are unable to expect that an experienced advocate will represent their interests, particularly as public safety and liberty are at stake?”
Historically, Wisconsin has been nationally recognized as a leader in criminal justice administration. For example, it was the first state to codify a crime victim rights law (Wis. Stat. ch. 950) and a pioneer in establishing the office of State Public Defender (ch. 977).
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What had been missing, however, was the express recognition of and, more important, state funding of an even more significant right – that of “effective” representation. In Gideon v. Wainwright, 372 U.S. 335 (1963), and Strickland v. Washington, 466 U.S. 668 (1984), the U.S. Supreme Court held that the fact “a person who happens to be a lawyer is present at trial alongside the accused … is not enough to satisfy the constitutional command.” Significantly, the Court noted that the Sixth Amendment right to counsel in an adversarial system is the right to “effective” assistance of counsel, which allows the system to produce just results.
Without retention of experienced, sophisticated public advocates – for the state and for the defense – Wisconsin’s criminal justice system cannot purport to provide just results. These revisions to chapter 230 are “progress in the right direction,” as they provide meaningful pay progression for our colleagues in the public sector. Effective representation matters because justice matters.
But let’s not stop here. Of similar concern and in need of similar support is the overarching concept of “equal justice under law,” which applies with equal force to our civil justice system. With similar encouragement and persistence, perhaps we can convince our governmental leaders that justice in the civil context also matters.