A shortage of prosecutors means fewer prosecutions of sex offenders, a decrease in community safety and a loss of trust in the justice system by victims. And the problem isn’t going away anytime soon.
By Shereen Siewert
WAUSAU — As Wisconsin has become increasingly tough on crime, crime has also become tough on prosecutors — including Marathon County District Attorney Theresa Wetzsteon.
Wetzsteon, elected to her post in November, has been a prosecutor in Marathon County since 2002. Since she was hired as an assistant district attorney, 31 prosecutors have come and gone, the vast majority of whom have left the public sector for more lucrative jobs outside the state system. And state budget constraints mean the DA’s office is staffed at just 75 percent of recommended levels, leaving attorneys overworked and overwhelmed — and leaving victims in limbo.
The situation is so severe, Wetzsteon now calls the statewide prosecutor shortage a public safety crisis.
A shortage of prosecutors means fewer prosecutions of sex offenders, a decrease in community safety and a loss of trust in the justice system by victims, according to a statement released by the Wisconsin Coalition Against Sexual Assault. Without additional state funding, prosecutors say, pursuing justice for victims will remain an uphill battle.
Low pay and overwhelming individual caseloads are driving prosecutors from state service, Wetzsteon said. New attorneys, fresh from law school, carry an average student loan debt of more than $122,000, according to federal data, with staggering monthly payments. But new prosecutors in Wisconsin earn just over $49,000 per year — less than half of what they can make at larger firms in the private sector.
“Unless you have a serious passion for justice, there is very little incentive to be a prosecutor,” Wetzsteon said. “It’s no wonder we’ve turned this staff over three times in 15 years.”
Over the past three decades, changes in Wisconsin law combined with stiffer penalties have led to more criminals being sent to Wisconsin jails and prisons. While that may sound like good news, prosecuting these crimes has become a daunting and increasingly complex task for district attorneys and their assistants, for a variety of reasons.
Wisconsin’s tough-on-crime stance, coupled with developments in technology, are also ratcheting up the pressure on Marathon County’s 10 assistant prosecutors. In 2016, the DA’s office received 5,621 referrals from local police agencies to review, filing charges in 3,935 cases — nearly twice as many charges as the office filed in 2009. That means each prosecutor was handed nearly 400 new cases last year alone. And at any given time, the domestic violence prosecutor has between 300-350 open cases to deal with. The recommended number of felony sexual assault cases per prosecutor: 60.
Long hours, complex investigations
Historically in Wisconsin, prosecutors were paid by counties. That changed in 1990, when they became state employees in an effort to help smaller counties that had difficulty retaining prosecutors because of low pay.
Initially as state workers, prosecutors received so-called “step” increases in pay, then merit increases. The idea was that prosecutors would move up the pay scale as their careers progressed toward handling felony cases.
But then the raises stopped coming. In the last state budget, legislators enacted and funded pay progression, authorizing pay raises for many assistant and deputy district attorneys of about 10 percent. But that raise was cut dramatically after Gov. Scott Walker vetoed the change; the Joint Finance Committee approved a 2 percent raise instead.
The prosecutor staffing shortage isn’t limited to Marathon County. The most recent state workload analysis of staffing in DA’s offices found that statewide, DA’s offices are short by about 130 prosecutors. Here, the state pays for 8.5 prosecutors; the county picks up the tab for an additional 2.5 positions. Based on population alone, the county should add an additional 3.5 prosecutors to be fully staffed. But the money is nowhere to be found.
Sen. Jerry Petrowski (R-Marathon) said he is well aware that the staffing shortage is creating headaches for prosecutors and investigators.
“In Joint Finance, we’ve heard some powerful testimony that shows how big a problem this is,” Petrowski said. “Public defenders, district attorneys and judges all need funding and I’m hopeful we’ll find a way to provide it.”
The current prosecution crisis threatens public safety in part by decreasing the amount of time a prosecutor can spend working with law enforcement officers, Wetzsteon said. Many cases require hundreds of hours spent combing through cell phone records, emails, social media accounts, recordings from police bodycams and videotaped interviews between suspects and police. The responsibility for reviewing all that evidence, Wetzsteon said, falls on prosecutors, which can lead to significant delays in taking a case to trial.
For a defendant who is in jail, the system is designed to bring the case to trial within about three months of arrest. But that rarely happens in Marathon County. A search of Wisconsin Circuit Court data shows that in 2016 40 felony cases closed in 2016 had been on the books for more than two years. One example: Kristopher Torgerson, who in March was convicted in the 2010 slaying of Stephanie Low, was first charged with the crime more than three years earlier.
Such lengthy wait times make prosecution more difficult for a variety of reasons. Witnesses forget what they saw. And some cases wind up being dropped because witnesses relocate and can be difficult to contact, making follow-up investigation exponentially more complicated, according to the Legislative Audit Bureau.
The prosecutor shortage and turnover also worsens the services provided to crime victims. Under Wisconsin law, the state has a “moral responsibility to aid innocent victims of violent crime.” But the prosecutor shortage clearly inhibits the state from fulfilling this responsibility.
The Wisconsin Victim/Witness Professionals Association is also weighing in, saying the crisis “has a direct impact on the victims and witnesses of crime because even the most courteous and compassionate prosecutor cannot fully serve a victim or witness under the current system.”
From 2001 through 2005, the number of criminal cases prosecuted by district attorneys’ offices increased by 11.5 percent statewide, and the number of felony cases increased by 16.2 percent. But the last major change in the number of prosecutors statewide happened in 2003. That year, the state eliminated 15 positions over 12 counties.
In the most recent 2015-2017 budget, district attorneys sought an additional 91 prosecutors statewide. Lawmakers approved funding for 1.2 positions, but that funding was vetoed by Gov. Walker. Now, Wisconsin’s district attorneys are asking again, filing a September 2016 request for more funding in the upcoming budget. The proposal asks the state to add about 100 new prosecutors for the 2017-19 biennium.
There are some additional solutions that could help ease the crunch, at least in some ways. In some counties, including Marathon, prosecutors and courts are working together to identify structures and policies to improve efficiency, such as implementing rotation schedules or court specialization, initiating regular meetings between prosecutors and judges and reducing the number of hearings held on each case.
Another method for addressing staffing needs, particularly in smaller counties, would be to create a pool of short-term, “floating” assistant district attorneys in a central or regional office who could be assigned to counties experiencing unexpected increases in workload.
But even these efforts won’t completely solve the problem, say prosecutors, judges and victims advocacy groups. Proponents for increased funding say the state’s resistance to fully fund prosecution has eroded crime victims’ confidence in the Wisconsin criminal justice system.
The mission of the DA’s office is clear: “Ensure justice is done in a timely manner in all instances in which a case has been referred for prosecution by law enforcement agencies.” But without additional resources, Wetzsteon said, that mission is a tall order indeed.