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ON THE DEFENSIVE: With pay progression, prosecutors and defenders should come before judges

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and previously served two terms on the board of the National Association of Criminal Defense Lawyers.

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and previously served two terms on the board of the National Association of Criminal Defense Lawyers.

In her State of the Judiciary Address, Wisconsin Supreme Court Chief Justice Pat Roggensack promised that she will fight for higher judicial salaries when the Legislature begins work on the state’s next budget.

Roggensack emphasized that judicial salaries should reflect the important role that their recipients play in maintaining constitutional liberties. A Wisconsin Supreme Court justice currently earns $147,403 a year.

State court judges are paid $131,200. Justice Roggensack said that she wants the judiciary to be the “best it can be.” Few would doubt that fair compensation raises the quality of the candidate pool. Justice Roggensack (and every other judge in the state) would obviously reap personal benefits from a salary increase.

But are they truly the ones who are in need? What about the far more pressing concern – the unconscionably low salaries paid to prosecutors and public defenders?

Under the current system in Wisconsin, prosecutors and public defenders will see virtually no pay progression throughout their career. In practical terms, this means that regardless of performance, prosecutors and public defenders will spend virtually their entire careers making between $50,000 and $60,000.

Take, for example, an assistant district attorney in Milwaukee who has worked in that office for 14 years. He or she now earns $58,079 a year, which amounts to $8,000 more than a new graduate.

The same is true for a public defender with the same amount of experience. The lack of pay progression explains the high turnover rate within the public defender and district attorney’s offices. Although the work may be rewarding, it is nearly impossible to retain high quality lawyers when they have almost no financial incentive to stay in these positions.

Most prosecutors and public defenders, finding they have no good way to earn substantially more money, end up looking for private-sector work after only a few years. Among those who don’t, many find that the abysmal pay structure of public work ends up forcing them to moonlight as bartenders and servers.

The entire system suffers because of this poorly developed pay structure. For one, crime victims lose experienced and competent attorneys who could effectively prosecute their case. On the other side of that coin, criminal defendants lose lawyers who understand what motions to file, what arguments to make and how to try a case.

From the perspective of the judiciary, nothing is made more efficient when new graduates are left to fight things out in court.

If Justice Roggensack is going to advocate for anyone, it should be for the staff public defenders and prosecutors who have worked for over a decade without any significant pay increase.

They should come first, before anyone else in the criminal justice system gets a raise. Every single one of these lawyers puts in more than 40 hours a week. Most of them take work home with them and spend their weekends and evenings preparing for trial.

These lawyers should be able to earn a decent living without suffering perverse incentives that encourage them to leave, rather than keep their jobs.

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