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Wisconsin on brink of constitutional crisis as courts face unprecedented DA, public defender shortage

By: Steve Schuster, [email protected]//March 23, 2023//

Wisconsin on brink of constitutional crisis as courts face unprecedented DA, public defender shortage

By: Steve Schuster, [email protected]//March 23, 2023//

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Editors Note: Our Managing Editor, Steve Schuster spoke to Judges, the Office of Lawyer Regulation, Federal Prosecutors, District Attorneys throughout the Midwest, the State Bar of Wisconsin, Wisconsin Attorney General, Governor Tony’s Evers office, as well as legislatures to determine the full extent of the problem and possible solutions on how to fix Wisconsin’s broken criminal justice system.

By Steve Schuster

[email protected]

Pictured from left to right: Milwaukee County District Attorney John Chisholm, Dodge County District Attorney Andrea Will, Fond du Lac County District Attorney  and President of Wisconsin District Attorney’s Association Eric Toney (Photos Courtesy of Milwaukee County, Dodge County and Fond Du Lac County)

It’s a rare day in the Badger State these days (except when the Packers play) when Republicans and Democrats, prosecutors and defense attorneys, people from rural and urban areas, not to mention executive, legislative and judicial branches of government are all in agreement — Wisconsin is on the brink of a constitutional crisis.

It doesn’t take a Netflix series to show that Wisconsin’s criminal justice system has some, shall we say, opportunities for improvement.

The Kohler Co. is advertising jobs for bath and shower installation technicians at up to $35 an hour. That’s $7.76 an hour more than assistant district attorneys or assistant public defenders make in the state of Wisconsin. It’s probably a safe bet that they have less student loan debt and if it’s a union shop, their workload may include less hours too.

“We know that we are not always going to be able to compete with private sector. ADAs are significantly underpaid, which is contributing to recruitment and retention challenges,” said Fond du Lac County District Attorney Eric Toney, who is also president of the Wisconsin District Attorney’s Assocation.

Wisconsin public defender shortage

District attorneys across the state have either staffing shortages or positions they are unable to fill as salaries can’t compete with the private sector, the Wisconsin Bar tells the Wisconsin Law Journal during an interview.

“It’s hard to attract good young lawyers. Assistant prosecutors and public defenders are getting $27.24 an hour. They come out of law school and they have large loans,” said Margaret Hickey, president of the State Bar of Wisconsin, noting that Wisconsin’s criminal justice system is “in a state of huge disrepair.”

As of January, Hickey said there were 48 assistant district attorney vacancies throughout the state.

The result is that the wheels of justice turn more slowly, Hickey said.

“The delay is important because the person who is accused of a crime has a right to speedy justice and there are victims who now have to wait for their justice. It’s very destressing for people to go to court and to find out that no hearing is happening today because of no public defender being available,” Hickey said.

Adam Plotkin, legislative liaison for the Wisconsin State Public Defender’s Office, tells the Wisconsin Law Journal that there are currently 45 vacancies in public defender’s offices throughout Wisconsin.

Like in district attorney offices throughout the state, the public defender offices are seeing record turnover.

“Typically, the turnover in the public defender’s office is about 11%, but lately that number is closer to 22%,” Plotkin said, noting that Wisconsin remains in the bottom 1/3 of the country in public defender pay.

The impact spills over from criminal courts to civil, Hickey said, noting that a civil court judge moved over to criminal court and now there are even more delays, which spill into the circuit court system.

But does the domino effect end there? Not quite.

According to Scott Wales, who has a private law practice and serves as municipal judge for the village of Fox Point, the municipal courts are often waiting to move forward until the circuit court system resolves cases when defendants have cases in both jurisdictions.

The end result is more delays on the municipal court level too, he said. Speaking in his capacity as a private attorney, Wales urges legislators to connect the dots.

“It’s not just lawyers asking for money, it’s the entire system that would benefit,” he said, noting that raising wages for assistant district attorneys and public defenders will benefits clients, defendants, attorneys, judges, court staff, the prison system and law enforcement.

So what’s the solution? Milwaukee County District Attorney John Chisholm tells the Wisconsin Law Journal that “There has always been a divide between do you ask for more pay or more positions?”

Chisholm said “for years we have had to split the difference. It’s a constant battle between asking for more people or more pay (for existing attorneys) to combat expanding caseloads.”

Chisholm, as well as several other prosecutors in Wisconsin, said compounding the problem is the cost of law school tuition.

“The cost of obtaining a law degree has skyrocketed over the last 20 years. Kids are coming out of law school with $150,000 in debt. If we pay them $52,000 a year, that’s just not going to cut it,” Chisholm said.

Milwaukee attorney Gregg Herman agreed with Chisholm.

“When I started out as a 1L, I paid $350 a semester,” said Herman.

According to Herman, when you factor in inflation, assistant district attorneys in Wisconsin are being paid now what they were back when he worked as an assistant district attorney from 1977-1984. “Except back then there was little to no student loan debt,” he added. Herman is currently working part-time again in the district attorney’s office as an assistant DA.

Chisholm said that private sector jobs, corporation counsel and assistant U.S. attorney roles pay significantly more and are therefore more attractive options to many recent law school grads.

United States First Assistant Attorney Rick Frohling of the Eastern District of Wisconsin agreed with Chisholm during an interview with the Wisconsin Law Journal.

“The federal system does have the ability to pay assistant U.S. attorneys at a higher level than what we see from Wisconsin assistant district attorneys who come onboard. We see lots of resumes and applications from talented ADAs whenever we have openings,” Frohling said.

According to Frohling, assistant U.S. attorneys (AUSA) are paid on an administratively determined pay scale, unlike many other federal positions which pay based on the general schedule (GS) classification.

Frohling said that AUSAs are paid based on how many years they have out of law school. A starting AUSA will get paid a minimum of $72,215. However, an AUSA can make up to $183,400 annually.

Back on the county level, Kent Lovern, chief deputy district attorney for Milwaukee County, tells the Wisconsin Law Journal that he believes this crisis did not happen overnight.

“It’s a crisis that has been building over time,” Lovern said, noting that “We need to better fund the criminal justice system in Wisconsin overall.”

According to Lovern, the result is less experienced attorneys trying very serious cases on both the prosecutorial and defense side.

“We have hard-working, talented people who are taking on bigger and important cases much earlier in their careers. The reality is there are new attorneys in our office with only one year of experience trying felony cases,” he said.

Chisholm also said that some of the most significant decisions are made by government attorneys.

“State prosecutors are making decisions every day and you want an experienced, mature professional person making those decisions, you don’t want it to just become a training ground for good government lawyers who then take positions elsewhere that pay more, ” he said.

The turnover among prosecutors is significant.

“There is a 21% turnover rate in state for prosecutors. That’s one out of five lawyers quitting,” Hickey said.

Wisconsin Attorney General Josh Kaul tells the Wisconsin Law Journal that he supports these critical investments in public safety.

“After decades of underfunding of Wisconsin’s criminal justice system, our historic budget surplus provides a once-in-a-generation opportunity for the legislature to make critical investments in public safety. Through a reasonable and much-needed increase in pay for ADAs, Wisconsin will be better able to retain experienced prosecutors. Likewise, adequate funding for the Department of Justice, the court system, and public defenders is needed to ensure that our justice system is able to operate effectively and efficiently,” Attorney General Kaul said.

Hickey and Chisholm remain cautiously optimistic.

“We still have excellent people doing phenomenal work with not a lot of resources,” Hickey said. “I am hopeful that if the governor and legislators pass the budget proposal, it will make a substantial difference.”

Chisholm said, “We are still getting talented, principled people who want to serve their country and their community in a self-sacrificing way. People who want to do public service. … (The problem is) once they start becoming really good we start to lose them to better paying jobs.”

That paired with Wisconsin’s polarized political climate and a pandemic creates additional challenges, officials say.

“Everyone knows the climate in Wisconsin right now between Evers and the Legislature. I am worried legislators won’t want something Governor Evers is proposing,” Hickey said.

However, Toney said he is cautiously optimistic too.

“I’ve met with everyone on the Republican Joint Finance Committee and I believe they understand the seriousness of the crisis. We’ve also had good relationships with the governor’s office and the Legislature in the past. I am cautiously optimistic about working together and setting aside politics to fix this crisis,” Toney said.

The pain is being felt in both rural and urban areas, by both Democrats and Republicans, by prosecutors and defense attorneys, officials said.

“Throughout the state of Wisconsin there is a shortage of experienced prosecutors,” said Andrea Will, district attorney of Dodge County, during an interview with the Wisconsin Law Journal.

Will, who was appointed by Gov. Evers on Feb. 1, started working for Dodge County on Feb. 20 after the entire office left.  She says, “There is a dire need to for pay progression to retain experienced prosecutors.”

“The State Bar of Wisconsin is calling the shortage of prosecutors and public defenders a constitutional crisis that could lead to the erosion of the right to a fair and speedy trial,” the Wisconsin Bar wrote in a January article.

In  Evers’ February budget address, he proposed investing in recruitment and retention efforts for assistant district attorneys and assistant state public defenders.

“We’re investing nearly $36 million into bolstering our justice workforce, including assistant district attorneys and public defenders, among other key positions,” Evers said.

The crisis is not limited to Wisconsin. The Wisconsin State Journal interviewed prosecutors across the lake in Michigan.

David W. Williams, the chief assistant prosecuting attorney for Oakland County, Michigan, in suburban Detroit, said, “It’s a problem everywhere. We’re fortunate in our county that we can offer attractive salaries and benefits, but that’s not enough. We have been able to fill almost all of our positions by taking two approaches – we have focused on office culture and retaining our best attorneys, and we have spent a lot of time in the community and law schools explaining that our assistant prosecutors have the discretion and latitude to do the right thing in every case.”

John Perry, communications director of the Prosecuting Attorneys Association in Michigan, said Michigan had 83 counties and of those counties 32 have openings for at least one district attorney position.

However, according to Williams and Chisholm, Michigan has a very different set of challenges than Wisconsin.

Williams said that in Oakland County, Michigan, “Our APAs start out with an annual salary in the high $60s/low $70s. But that is specific to our county, and it’s the highest in the state. The other counties in the state each have their own pay scale.”

Chisholm said that Michigan and Minnesota both still maintain county funding, which allows some counties to pay prosecutors more. However, in Wisconsin an assistant prosecutor in Ashland County makes the same as in Milwaukee County.

“What’s interesting about that is (prosecutors in Michigan and Minnesota) have to go to county board for money. It actually makes sense because it’s more responsive to local concerns. If Waukesha and Milwaukee had the ability to just pay what’s appropriate, you’d find lower caseloads in Waukesha, people being paid similar to Milwaukee, and you wouldn’t have people leaving so often. Half of Waukesha are former district attorneys from Milwaukee County. In Waukesha, the workloads and stressors are very serious, but not as great as Milwaukee,” Chisholm said.

Wisconsin Democrat Sen. Chris Larson says he supports Evers’ proposed $8 pay increase for state public defenders and assistant district attorneys.

“Wisconsin’s criminal justice system is in the midst of a staffing crisis at nearly every level. Given the fact that two-thirds of residents in local jails nationwide are being held pre-trial, having enough public defenders and assistant DAs to provide a speedy trial to these individuals is critical. I applaud Governor Evers for addressing this need in his biennial budget proposal, and I hope my Republican colleagues will agree to support it,” Larson told the Wisconsin Law Journal during an interview.

Across the political aisle, Republican Sen. André Jacque said he too supports the increase.

“It’s certainly an issue with our criminal justice system in terms of having adequate resources. I think there is pretty broad support for addressing the overall needs of the court system,” Jacque said during an interview with the Wisconsin Law Journal.

“There have been a lot of signals from all parties. I’m not aware of anyone fighting what was jointly proposed,’ Jacque added.

The Wisconsin Law Journal also reached out to the Office of Lawyer Regulation (OLR). OLR declined to comment and deferred questions to a spokesperson for The Director of State Courts Office.

The Director of State Courts Office is part of the Criminal Justice Coalition, which also includes the Wisconsin Department of Justice, the Wisconsin State Public Defender’s Office, the Association of State Prosecutors, and the Wisconsin District Attorney’s Association, according to Tom Sheehan Public Information Officer with the Wisconsin Court System.

“As part of that coalition, we have joined together with our criminal justice partners to support pay increases for prosecutors, public defenders, and private bar attorneys who handle SPD cases.  The full proposal is outlined in the Coalition’s 2023-25 Biennial Budget Proposal white paper,” said Sheehan.

Next steps

“There has to be set in stone benchmarks of pay progression so people can forecast potential for earnings as a prosecutor or public defender,” Lovern said.

Jacque said that pay progression was introduced two legislative cycles ago, but it will be addressed in the next budget session.

Larson said the Joint Finance Committee will hold listening sessions across the state about pay progression and other issues. Those sessions will conclude in late April, with the last being in Minocqua. For the last budget in 2021, the Committee didn’t finish their executive sessions on budget motions until mid-June.

“The only real deadline to pass the budget is June 30. The rest of the process is more flexible before that,” Larson said.

Legal deserts

The American Bar Association says legal deserts “threaten justice for all in rural America.”

While there are about 1.3 million lawyers in America, most of those are concentrated in cities, the ABA reports.

As previously reported by the Wisconsin Law Journal, Wisconsin has an average of 2.7 lawyers for every 1,000 residents — much fewer than both New York, which has the highest national average of 9.5 lawyers for every 1,000 residents, and Minnesota, which has 4.6 lawyers for every 1,000 residents. Within Wisconsin, attorneys are concentrated in and around the largest cities, leaving rural places short of legal services.

How have other states addressed similar issues?

In 2020, Texas had 105,000 lawyers spread out through 254 counties, averaging about 400 lawyers per county. However, big cities such as Houston, Dallas and San Antonio have many more lawyers, so many rural counties do not have many lawyers, an ABA report said.

Texas has taken a two-prong approach by first encouraging big city lawyers to establish offices outside of their city. Secondly, Texans are enhancing technology with electronic filing and establishing virtual legal clinics in libraries that have internet access in areas that typically are without that luxury, according to the ABA.

Wisconsin is specifically mentioned in a Harvard Law & Policy Review article which states, “Rural America faces an increasingly dire access-to-justice crisis, which serves to exacerbate the already disproportionate share of social problems afflicting rural areas.”

Nine counties in northern Wisconsin have 10 or fewer active attorneys, according to the article.

“These shortages have immediate impacts on northern Wisconsin’s civil legal aid attorneys … They also have urgent consequences for northern Wisconsin more broadly, where rising rates of opioid and meth addiction are resulting in an ever-increasing number of criminal cases,” the article states.

The result?

“The absence of local lawyers, and of private attorneys across Wisconsin who are unwilling to accept a low hourly rate and an even lower travel rate for up to five hours of driving time one-way, has resulted in a backlog of cases,” the article explains.


This story has been updated.


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