On May 4, 2020, “We, the people of Wisconsin” voted to add crime victims’ rights to those enumerated in the Wisconsin Constitution. Section 9m states the goal of the constitutional amendment: “to preserve and protect victims’ rights to justice and due process throughout the criminal and juvenile justice process.”

In Wisconsin, the public and victims are represented in court by district attorneys (DAs), who rely heavily on assistant district attorneys (ADAs). There are currently 415 ADAs serving Wisconsin’s 72 counties.

Ten years ago, the U.W.-Madison 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 study found that ADA turnover was twice the annual turnover rate of public employees.

In response, the Wisconsin Legislature passed and the governor signed into law what was referred to as the “Assistant District Attorney Pay Progression Plan” under 2011 Wis. Act 238 (revising Wis. Stat. chapter 230), along with a plan for assistant state public defenders who represent indigent defendants, both aimed at curtailing turnover by providing merit-based pay progression.

Former State Bar president John S. Skilton recognized the importance of these statutory revisions in an article, “Pay Progression for Public Sector Attorneys: Progress in the Right Direction” (86 Wis. Law. __ (Sept. 2013)), 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.”

Despite passage of a statutory pay progression plan, turnover remains high. Of the 330 ADAs serving Wisconsin when the statute took effect on April 20, 2012, only 135 remained in service as of autumn 2022 – a 59% turnover rate. Beyond turnover, more than 65% of ADAs now have less than 10 years’ experience. This is unlikely to be the experience that Skilton – a highly regarded lawyer with more than 50 years of practice – urged in his article.

According to the plan, an ADA who started in 2012 should be on step 11 of 17, making $52.16 per hour beginning January 2023. Instead, such an ADA is only making $38.26 per hour, because of inadequate and inconsistent funding of the pay progression plan per biennial budgets. Beyond experiencing the effects of inflation, most of these ADAs have significant student loan debt from college and law school. The lower wage also negatively affects recruitment: 64 additional ADA positions remain unfilled.

As the U.S. Supreme Court stated in Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 122 (1934), “justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament.” To provide effective assistance of counsel, the state must fully fund pay progression, so as to “preserve and protect victims’ rights … in a manner no less vigorous than the protections afforded to the accused,” as the Wisconsin Constitution requires.

» Cite this article: 95 Wis. Law. 64 (December 2022).