“It’s really a problem that has reached a constitutional crisis from both perspectives,” said Judge Guy Dutcher who presides over criminal cases in Waushara County.

State officials are warning of potential miscarriages of justice as Wisconsin faces a shortage of both public defenders and prosecutors.

“If you go to some of these counties like Waushara County or Shawano, it’s anywhere from 50% of their prosecution staff that are vacant — in one county right now, it’s 100% prosecution staff vacancy,” said Kurt Klomberg, the district attorney for Dodge County, where he said staff shortages have been exacerbated by a lack of quality candidates.

“We’re getting very minimal numbers of applicants and not a lot of experience in what applicants we are getting,” he said.

On the other side of the courtroom, Wisconsin State Public Defender Kelli Thompson said her office also has staffing issues.

“The simple answer is we need more attorneys. We need more attorneys on staff, and we need more attorneys in the private bar for those conflict and overflow cases. So right now, we have a shortage just in recruitment,” Thompson said.

Both prosecutors and defenders say the largest gap in recruitment falls in rural counties, where open attorney positions are not attracting applicants.

“We currently are a county that has two courts, two judges. We have a single prosecutor, the elected district attorney and two vacant full time prosecutors’ positions,” said Dutcher, who presides over a courtroom in rural Waushara County that has seen attorney shortages increase steadily for about 10 years.

Waushara County Judge Guy Dutcher has been battling attorney shortages in his courtrooms for about a decade. (Credit: PBS Wisconsin)

“Smaller counties were having difficulty finding attorneys to take cases, at times having to go three or four counties removed to find public defender appointments or public defender availability for people who have a constitutional right to representation,” Dutcher explained.

Statewide, a murder case took about 15 months to be resolved in 2021 — in rural Dodge county, it took about two years.

“Now we’re having these delays that go on longer, and that really hurts victims,” Klomberg said. “It also hurts defendants.”

Since 2003, overall wait times before a decision is reached in felony cases has increased by 85%, and wait times for misdemeanor cases have increased by 110%.

As of 2021, it took more than 6 months for both felony and misdemeanor cases to be resolved in Wisconsin. (Credit: PBS Wisconsin)

“The strain is significant — the human impact, the emotional, the mental health part of this is significant. I mean, to get those calls from your client, to go see your client and to know that they’re struggling because they don’t have information or their case isn’t moving forward or they don’t know what’s going on,” Thompson said.

The main cause of the shortage? A salary that starts low, and doesn’t increase very fast. Most qualified attorneys don’t want defender or prosecutor jobs because they can earn more at private firms.

“Public defenders’ pay is too low,” Thompson said. “And so we need to boost that up because, quite frankly, it’s hard to keep them when we can’t pay them enough to buy a home, raise their family, pay their student loans.”

Wisconsin State Public Defender Kelli Thompson says a lack of defense attorneys hurts the entire criminal justice system. (Credit: PBS Wisconsin)

State attorney jobs start at about $55,000 per year, while private sector jobs typically start near $80,000 per year.

“When you’re looking at simply saying, I can make $25,000 more per year as a starting salary. To simply go and do that as opposed to becoming a state prosecutor — there’s a business decision there,” said Klomberg.

On top of lower pay, prosecutors and public defenders often have massive caseloads.

Klomberg said it isn’t unusual for a prosecutor to juggle 200-300 cases at a time.

“You’re always trying to catch up. And so that also makes the job less attractive,” he said.

While hiring has been a problem for both offices, retention has also become an issue. When it comes to the number of years assistant district attorneys have spent actually prosecuting cases, most fall between 1 and 8 years of experience, while a far smaller number have more than 10 years experience.

The number of experienced prosecutors is much smaller as of 2021 than when Waushara County Circuit Court Judge Guy Dutcher was a district attorney. (Credit: PBS Wisconsin)

“When I came through the ranks as a young prosecutor, there were literally dozens of very seasoned, experienced career prosecutors,” Dutcher said. “I think you see less and less people choosing prosecution as a career.”

A lack of experience can cause mistakes in the courtroom that can’t be fixed.

“This is also a job where we really don’t get a lot of second chances. If you make a mistake, it’s pretty much final,” said Klomberg.

In order to make state attorney positions more attractive to potential candidates, both the state public defenders office, and many district attorneys are petitioning the state government for a higher starting salary.

“The state prosecutor’s office did a study recently, and the Wisconsin DA’s Association, which I’m the past president of, is promoting a salary point in the mid-$70,000s,” Klomberg said.

He said a $70,000 starting salary would likely boost the number of prosecutors to acceptable levels.

On the defenders’ side, the state Legislature has been asked to increase pay for private bar attorneys from $70 per hour to $125 per hour for in-court work, and $100 per hour for out-of-court work.

“We need to either be at that or above that so that we can continue to take that burden off of the county,” Thompson said.

While increased starting salaries would have an impact over the longer term, Klomberg and Thompson said federal funds should be used to temporarily raise salaries.

The shortage of attorneys in Dodge County got so bad Kurt Klomberg chose to resign from his position as district attorney. (Credit: PBS Wisconsin)

“There is a limited amount of funds that are available right now because of the ARPA money that has been made available,” said Klomberg, referencing federal American Rescue Plan Act funding distributed by Gov. Tony Evers. “But for the most part, it has to be only in extreme situations.”

The shortage got so bad in Dodge County, Klomberg decided to resign from his position effective Jan. 12, because he would have had to pull the weight of six prosecutors alone. Even as the number of assistant district attorneys dwindles, so too is the number of people running for county district attorney offices, for many of the same reasons.

As the state Legislature is set to meet and decide Wisconsin’s 2023-25 budget, funding for the justice system will be at the top of attorneys’ minds.

“There’s an expression that often gets used, that justice delayed is justice denied,” Dutcher said. “And that applies, frankly, to everyone who’s involved with this type of circumstance.”