WISCONISN — Even though recent state budgets have increased staffing levels for district attorneys and public defenders — and raised pay — they still make less than attorneys who work in private sectors. Plus, the workloads and turnover rates for Wisconsin’s public defenders and DAs has increased, too.
Assistant public defenders and assistant DAs make a starting wage of $56,659, which works out to be about $27.24 an hour, according to an April report from the Wisconsin Policy Forum. That’s a 15% increase in starting pay since 2012. However, inflation has risen more than twice as much since then.
The median pay for a Wisconsin lawyer in 2021 was $115,336, which works out to be about $55.45 an hour. Assistant district attorneys and public defenders in the state made $74,381 — or $35.76 an hour — the same year. Veteran ADAs and assistant public defenders made about $136,781 in 2023. The Wisconsin Policy Forum noted that prosecutors and public defenders tend to take home a “more generous pension and health benefits” than their counterparts in private sectors.
The Wisconsin Policy Forum said there has been a push for salary increases “to fill public defender and ADA vacancies and retain high-quality attorneys.”
DAs are elected at the county level — assisted by ADAs and deputy district attorneys in some parts of the state — to prosecute criminals. The state pays DA salaries and controls their benefits. Support staff, however, are county employees.
There are 71 DAs in the state. Every county has one, except for Shawano and Menominee counties, which share a DA office. Buffalo, Florence and Pepin counties have part-time DAs.
The Wisconsin District Attorneys Association estimated the state would need 577.2 full-time equivalent prosecutors to handle caseloads, based on the average number of cases filed between 2019 and 2021. This assumes every FTE prosecutors are working 40 hours per week. That’s 103 more than the amount of FTE prosecutors allowed as of Sept. 2022.
Recent budgets have allowed for more ADA positions, but low compensation levels may make it hard to fill them. Minimum wage for ADAs was $49,240 in 2012. It has since risen by 15.1% to $56,659. However, inflation has risen by 33.2% in the same timeframe.
In 2021, ADAs did not make more than $72,000 without 8 to 10 years of experience. They needed at least 15 years of experience to make more than $100,000.
The Milwaukee County DA’s office has about 120 attorney positions. In the last 6 years, at least 18 of those positions have turned over. From 2017 to 2022, the office averaged 15.8 separations a year.
The need for additional prosecutors could be contributing to the backlog of unresolved criminal cases in Wisconsin. Data from the Wisconsin State Court System showed the number of backlogged cases has been on the rise for the last decade. From 2013 to 2021, the Wisconsin Policy Forum said the “median case age at the date of disposition, or resolution, rose for every major category.”
The average criminal felony case took 152 days to resolve in 2013. By 2021, it took 241 days to resolve, an increase of 58.6%. The average misdemeanor case took 89 days to resolve in 2013. By 2021, it took 168 days to resolve, an increase of 88.8%. Both types of cases are normally handled by state prosecutors. The Wisconsin Policy Forum did note the pandemic slowed courts from 2019 to 2021, accounting for most of the increase.
State funding supports attorney and non-attorney positions in Public Defender’s Offices around Wisconsin. In 2023, $113.2 million in general purpose revenue was budgeted for public defender’s offices — including 614.85 FTEs, according to the Wisconsin Policy Forum.
Typically, public defenders represent people whose income is below 115% of the federal poverty line.
The Office of the State Public Defender will hire private attorneys to handle portions of the statewide caseload if there is a conflict of interest, given the sheer amount of cases the state takes on. OSPD said “the number of attorneys actively certified to take public defender appointments has declined by 17.9%, from 940 in January 2019 to 772 in August 2022.”
Private attorneys doing public defender work tend to make $70 an hour as of 2020. Before that, they made $40, the lowest of any state in the country.
Nationwide, the average hourly pay for a criminal defense lawyer is $181. In Wisconsin, when considering all lawyers, the average hourly billing rate is $248.
The Wisconsin Policy Forum said public defenders who had the same amount of experience had similar or slightly higher salaries than ADA counterparts.
In Wisconsin, public defenders with up to three years of experience earn more than the national average. However, public defenders with four years of experience or more earn less.
In Wisconsin, the average public defender touting 11 to 15 years of experience in 2021 made $85,150. In 2022 nationwide, the average public defender with the same experience made $101,145.
The turnover rate of trial attorneys from 2018 to 2020 fell anywhere from 9.8% to 11.4%. However, in 2021, the turnover rate rose to 17.9%. By 2022, it rose to 20.4%, meaning more than one out of every five trial attorneys left.
Applications are also on the decline. In 2018, there were 355 applicants for open positions statewide. By 2022, there were only 168 applicants despite Wisconsin having more licensed attorneys.
Looking toward the future
The Wisconsin Policy Forum said “the state runs the risk not only of being unable to fill vacant attorney positions, but also failing to retain veteran prosecutors and public defenders,” noting in 2021, there were more ADAs with five or less years of experience than ADAs with six or more years of experience.
Milwaukee County officials said they were concerned about the lack of experience newly hired prosecutors had.
Even though pandemic-induced backlogs of cases are lessening, Wisconsinites with cases in the system are facing longer wait times for resolutions. Because Wisconsin has lost experienced prosecutors and public defenders, the backlog will be difficult to downsize.
OSPD said there are other factors contributing to the increase of time it takes to work on a case, including: Complying with constitutional changes related to victim’s rights, keeping up with changing science and the increase in evidence from video cameras, cellphones and computers.
OSPD officials said 70% of discovery is happening electronically. OSPD offices download about 5,000 hours of video per month. Milwaukee officials said the Milwaukee trial office had to review more than 4,000 hours of video evidence between Dec. 2019 and Sept. 2020.
Public defense attorneys across the state said they spent an average of at least six hours a week viewing video footage.
“With turnover rates and case backlogs growing, job applications falling, and salaries lagging those of other attorneys, the staffing and compensation challenges for ADAs and public defenders seem likely to remain a concern with respect to both public safety and the constitutional rights of the accused,” the Wisconsin Policy Forum said. “State legislators may wish to consider these trends in the coming weeks as they set their budget priorities and lay out their plans for using the state’s sizable surplus.”
Read the full report below: