Outagamie County District Attorney Melinda Tempelis has been a prosecutor for 20 years. It has always been a tough job – trial prep and court appearances can be intense, especially when they force you to peer into the darker regions of the human heart.

But over the past few years the job has become nearly impossible.

“The number of cases has never been so high, the stress has never been so great, hiring has never been so difficult, and the hours have never been so bad,” Tempelis said.

According to Tempelis, prosecutors in Wisconsin’s 72 counties are hit with a double whammy. Caseloads are up because of the court backlog caused by the pandemic, but the number of prosecutors is down because open prosecutor positions are going unfilled.

Less Pay Than a Mill Job

Tempelis said low pay is to blame for the unfilled positions. The starting wage for an assistant district attorney is $27.74 per hour: about $54,000 per year.

“That’s just not sustainable for people who are coming out of law school with six-figure debt,” Tempelis said. “People get married, have children, want to buy a house, need a new car, need to pay their school debt. It’s not enough money to sustain a life that’s feasible, let alone glamourous.”

By comparison, the starting wage for an assistant corporation counsel is $35 per hour (about $68,000 per year).

“We’re losing prosecutors to other government sectors,” Tempelis said. “We’re not losing them to the private sector. That shows you that the people who’ve left are committed to doing this work.”

The paper mills in Appleton, Tempelis said, advertise entry-level positions that pay more than $27.74 per hour but demand less than does work as a prosecutor.

“When you’re talking about this quantity of cases and they’re concerned about doing something wrong, they’re concerned with appellate issues because they don’t have enough time to prepare motions or enough time to prep for trial, and they’re concerned about ethical or victim’s rights issues, the burden is extremely heavy,” Tempelis said. “It gets to the point where there are just not enough hours in the day.”

‘A Living Wage’

The State Public Defender (SPD) is in the same boat because the starting pay for a public defender is the same as for an assistant district attorney.

“It’s a pretty low starting salary, especially for a professional job with the responsibility and workloads that these folks have,” said Adam Plotkin, the SPD’s legislative liaison. “No one ever got into this work to become rich, but they do want to make a living wage.”

Some public defenders, Plotkin said, are taking on second jobs to supplement their income.

Courts across the state are making progress on the backlog. But in the meantime, open cases require work.

“The victims want to know what’s happening, the defendants want to know what’s happening, and so they’re constantly calling asking ‘When’s my case coming up?’” Plotkin said.

The criminal justice crisis is no longer limited to rural areas in Wisconsin, Plotkin said – it has made its way south to the state’s population centers, where the backlogs were the biggest.

“The fact that we’re having a hard time finding attorneys in Milwaukee and Dane counties tells you the extent of the problem,” Plotkin said.

Private Attorney Rates Too Low

State law authorizes a circuit court to appoint a private attorney to represent an indigent criminal defendant if the SPD is unable to do so. For instance, conflict rules mean the SPD can only represent one defendant in a trial with multiple defendants; the others must be represented by private attorneys.

Typically, a court will give the SPD time to find a private attorney, at a rate of $70 per hour, charged to the SPD. If the SPD can’t find a private attorney, the court will authorize the SPD to look for a private attorney at a rate of $100 per hour, charged to the county.

Those rates are usually too low to attract private attorneys.

Michael Covey is one of only a few attorneys in Wisconsin who have built private practices around indigent-defense appointments. He’s able to do it by cutting costs to the bone – he has no secretary, no paralegal, and a bare-bones office.

“It demands that you have no overhead, and you’re making less money than a lot of lawyers who are just out of law school,” Covey said.

‘They’re Just Very Difficult Cases’

Compounding the problem, Covey said, is that a private attorney appointed to represent an indigent defendant gets the same rate whether the case is a felony or a misdemeanor and whether the case requires a court appearance or not.

Then there’s the emotional toll exacted by defending a serious felony case.

“Nobody wants to take child sexual assault cases at the public defender rates because it’s a lot of work and a lot of stress,” Covey said. “It’s terrifying to cross-examine a seven-year-old. They’re just very difficult cases.”

Taken together, it means fewer and fewer private attorneys willing to help the SPD with the backlog.

“I get emails every single day saying, ‘Hey can you take this case,’ sometimes 15 emails a day from 12 counties a day,” Covey said. “I don’t even have time to respond to them all. I take a fraction of them.”

“The victims want to know what’s happening, the defendants want to know what’s happening, and so they’re constantly calling asking ‘When’s my case coming up?’” said Adam Plotkin, the SPD’s legislative liaison.

Courts & Department of Justice Affected Too

The funding crunch has affected the state Department of Justice (DOJ) and the state court system too.

That’s evident from the 2023-2025 budget proposals made by the DOJ and the Director of State Courts’ Office (DCSO), members of the Criminal Justice Coalition with the SPD, the Wisconsin District Attorney’s Association (WDAA), and the Association of State Prosecutors.

The DCSO asked for 32 positions and funding for four new circuit court branches that will begin operation on Aug. 1, 2023, under legislation enacted in 2019.

The DCSO also asked for $1.58 million for the installation of 100 new digital audio recording devices and $3.94 million to bolster the state court system’s cybersecurity.

The court system is turning to digital court reporters because of an ongoing shortage of stenographic court reporters (digital court reporters use digital software and equipment instead of a stenograph machine).

The DOJ has proposed adding 10 DNA technicians and four toxicologists to the State Crime Lab.

Chris McKinny, the DOJ’s government affairs director, said new DNA technicians would help the State Crime Lab keep current on requests for processing sexual assault kits and other DNA evidence. Over the last seven years, McKinny said, the percentage of crime lab cases that involve DNA evidence jumped from 25% to 35%.

The four toxicologists, McKinny said, are essential to helping law enforcement agencies stay one step ahead of increasingly creative drug dealers.

McKinny said that specialized analysts and sophisticated instruments are required to detect fentanyl and other opiates in ever smaller amounts because drug manufacturers are constantly coming up with ways to make the drugs more potent.

The DOJ is also asking to add two positions to its forensic science crime scene unit, which is often called to respond to complex crime scenes across the state. McKinny said there has been a 46% increase in requests since 2019.

The DOJ proposal also includes requests to boost reimbursement to county victim and witness service programs by $11.72 million.

Fair Pay for Attorneys

The WDAA has proposed spending $14.4 million to cover market-based pay raises for all assistant and deputy district attorneys. It is also asking for $4.5 million to cover merit-based pay raises authorized (but not funded) by previous legislation.

The SPD is asking for $16.5 million to fund merit-based pay raises authorized (but not funded) by previous legislation and to bring the starting pay for public defenders up to the $35-per-hour starting wage for assistant corporation counsels.

Additionally, the SPD is asking for $24.46 million to cover boosting the hourly rate for private attorney appointments to $125 per hour for in-court work and $100 per hour for out-of-court work and boosting the travel rate from $25 per hour to $50 per hour.

The requests made by the WDAA and the SPD total $71.8 million, or 1% of the state’s $7 billion surplus.

“Nobody wants to take child sexual assault cases at the public defender rates because it’s a lot of work and a lot of stress,” said Michael Covey. Covey is one of only a few attorneys in Wisconsin who have built private practices around indigent defense appointments.

‘Everything’ Is the Priority

Most of the coalition’s requests made it into Governor Evers’ proposed budget, with minor changes.

For instance, under Evers’ budget, the hourly rate for private attorney appointments would be $100 for all work, and the DOJ would get only four new DNA technicians and one crime scene unit position.

But Republican legislators, in the majority in the state Senate and the state Assembly, have said they plan to write their own budget, and there’s no guarantee their budget will track Evers’ in terms of the coalition’s requests.

Budgets are about priorities. But the time for choosing which parts of the criminal justice system to fund has passed, Tempelis said.

“I did a presentation on this in January and one of my legislators said – and this is across the board from both parties – ‘What is the priority, because we don’t have enough money to go around,’” Tempelis said. “And I said ‘Everything. I can’t choose just one, because the government’s primary responsibility is public safety.’ The only one who can fund us is the government.”

According to Tempelis, budget negotiators should think long and hard before trimming the coalition’s proposals.

“The only way to fix this problem is to invest in the work that we do,” Tempelis said. “There are men and women across this state working like crazy to ensure that justice is done.”

She hopes budget negotiators will keep crime victims in mind when hammering out the budget.

“If you’re the parent of a child sexual assault victim, do you want your prosecutor to have 250 cases that they’re trying to constantly balance and being on the verge of wanting to quit because they’re working 70 or 80 hours a week and getting paid almost nothing?” Tempelis said. “Or do you want someone who can take the time to do the work that they really need to do?”

‘The Bill Is Coming Due’

The longer the funding crisis persists, Tempelis said, the less safe the public is.

“You have people who get out of custody and then they commit more offenses,” Tempelis said. “We have defendants who have five, six, seven, eight, nine, ten cases pending at one time. They continue to victimize the community while they’re out on bond.”

If budgets are about priorities, then they’re also about values. If state government values the criminal justice system, Plotkin said, it should pay for it.

“This is not about people wanting to make more, it’s not even about the constitutional rights of defendants or victims; this is a public safety issue,” Plotkin said.

“If we’re going to ask the criminal justice system to do everything from mental health to substance abuse to day-in and day-out life-and-death decisions, we have to expect it’s going to cost something. We’re at the point where the bill is coming due.”

» Cite this article: 96 Wis. Law. 14-17 (April 2023).