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ON THE DEFENSIVE: Wisconsin has enough prosecutors

Anthony Cotton (Anthony is the President-Elect of the Wisconsin Association of Criminal Defense Lawyers and a Partner at Kuchler & Cotton, S.C., a criminal defense firm in Waukesha

Anthony Cotton is the president-elect of the Wisconsin Association of Criminal Defense Lawyers and a partner at Kuchler & Cotton, a criminal defense firm in Waukesha.

Attorney General Brad Schimel has announced his plan to ask the Legislature for millions more dollars to hire more prosecutors throughout the state.

Schimel and law enforcement officials have suggested that many DA’s offices are unable to keep pace with their workload.

The timing of Schimel’s request is bizarre. The total number of cases filed in Wisconsin has decreased from 129,932 in 1998 to 112,014 in 2015. Moreover, advances in technology since 1998 have made criminal cases easier for prosecutors to prove.

While there are flaws in Wisconsin’s justice system, a lack of criminal prosecutions is not one of them. The Department of Corrections budget, at $2.65 billion per biennium, is the single highest cost to taxpayers. Taxpayers spend more on corrections than they do on the university system. About 22,000 defendants are now housed in Wisconsin prisons and there are nearly 66,000 adults on probation or parole in the state.

Policymakers should be thinking of ways to reduce, not increase, the amount of money spent on corrections. While other states legalize marijuana, people in Wisconsin face felony prosecutions for their second possession offense. The Legislature continues to create new criminal statutes, as if existing laws failed to criminalize enough behavior. Policymakers continue to cling to so-called “truth in sentencing,” which eliminated a parole option for inmates who had made substantial rehabilitative efforts in prison.

Because criminal defendants have a constitutional right to legal representation, spending millions to hire more prosecutors means the Legislature will soon be confronted with having to spend millions to hire more public defenders. Cases that prosecutors may have previously referred to municipal courts (disorderly conduct, simple drug possession) will now be charged as criminal offenses.

The attorney general has also noted that because criminal cases have become more complex with the advent of the Internet and DNA analysis, more time must be spent reviewing them. But Schimel ignores the fact that the brunt of the work is absorbed by defense attorneys, not prosecutors. Unlike public defenders, prosecutors have an army of law-enforcement officers at their disposal to help analyze and explain such evidence. Public defenders have, at most, a staff investigator.

If the Legislature honors Schimel’s request, the outcome is easily predictable. When more prosecutors are hired, more cases are prosecuted. More citizens will have the scarlet letter of being labeled a criminal. More defendants will be housed in county jails, at a tremendous expense to local governments. Judges will become even more overworked and the Legislature will need to pay for more judicial positions. The Department of Corrections will need to hire more probation agents to supervise the increasing number of convicted defendants.

The Legislature should reject Schimel’s request or, at a minimum, match it with an equal amount of money spent on indigent defense. If the Legislature has any interest in spending more money on the criminal-justice system, it should be used to make sure prosecutors and public defenders are paid fair salaries. Efficiency is improved by retaining quality talent, not by putting more bodies in an office.

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