Wisconsin
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 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
Wisconsin Lawyer