Wisconsin Lawyer
Vol. 82, No. 8, August 2009

by George C. Brown, executive director

If you believe what you read, when you are in your mid-50s to mid-60s you are at the peak of your income-producing years. That is, unless you are an assistant district attorney in Wisconsin. Then, you will have to wait until you reach your mid-90s. No, that is not a misprint.

Here’s how it works. Until 2003, assistant district attorneys and other attorneys working for the state of Wisconsin had pay progression in their contract. As they gained experience, they were eligible to receive merit pay, which allowed prosecutors to progress beyond the minimum pay scale. Since 2003, when pay progression was eliminated, prosecutors’ salaries effectively have been frozen. Entry-level prosecutors are paid nearly the same as prosecutors with five years of experience. It takes 68 years of service (again, this is not a misprint) to reach the top of the pay scale.

This means that experienced prosecutors are leaving public service. Turnover occurs disproportionately among midlevel prosecutors. When 50 percent of the state’s prosecutors quit over a six-year period, as has happened in the last six years, the state is left with a lack of experienced prosecutors. In Milwaukee County alone, 59 of the 122 prosecutors left state service in those same six years.

In addition to a decrease in the number of experienced prosecutors, the number of authorized prosecutor positions has decreased since 2003. This reduction is largely due to declines in federal grant funding, which, combined with the state’s unwillingness to pick up the cost of these prosecutor positions or to adequately increase the number of prosecutors, has resulted in Wisconsin district attorney offices being understaffed by about 120 positions across the state. These numbers do not come from prosecutors hoping to increase their ranks but from the nonpartisan Legislative Audit Bureau.

All of this is occurring as caseloads are increasing, with criminal caseloads increasing by 11.5 percent between 2001 and 2005 and felony cases, which take the greatest amount of a prosecutor’s time, increasing by 16.2 percent.

What is the result? In nine of the 16 counties the Audit Bureau visited, prosecutors were forced to make priorities among cases. One office said that felony prosecutions could be delayed by three to six months. Such delays can result in cases not being prosecuted because of the inability to conduct follow-up investigations or even to contact the involved parties. In other counties, prosecutors settle out of court because they do not have the time needed to take matters to trial.

More than 30 years ago, my neighbor moved to Wisconsin after landing a job with the Wisconsin Department of Justice. As a young lawyer at the time, he thought he would last only about five years because the pay was so bad, and then he would enter private practice. In the meantime he would gain valuable trial experience. Then pay progression was implemented. This young lawyer stayed on to become an effective protector for the state, whether working in white-collar crime or dealing with land issues related to highway development.

Will Wisconsin continue to be well served best by lawyers who see service to the public as a three- or a five-year commitment? Policymakers seem to think so.

Wisconsin Lawyer