Wisconsin could save a lot of money if it didn’t hire the 54 assistant district attorneys the Assembly just approved to address staff shortages and instead farmed criminal prosecutions out to private attorneys at 40 bucks an hour.
Using cheaper-than-market-rate lawyers to prosecute the state's cases would make representation issues all even-steven with private lawyers appointed by the Office of the State Public Defender to defend indigent clients. They also make $40 an hour.
And to ensure complete fairness, these private prosecutors would also handle only cases involving poor defendants.
The defense private bar lawyers are appointed when staff attorneys at the Public Defender’s Office have too many cases to handle, or when there is a conflict of interest. In 2015-16, 55,568 cases were assigned to private bar attorneys, according to the Legislative Fiscal Bureau.
Some people may argue that $40 an hour is more than assistant district attorneys make now, but it’s not — far from it. The proposed $40, as with defense lawyers, would cover everything, including office space, health insurance, retirement savings, electricity, and staff help. Why should state taxpayers be on the hook for those extra costs for prosecutors if they are not paying them for defense lawyers?
The $40 private attorneys working the defense side really know how to economize. (They have to — Wisconsin’s $40 hourly rate is the lowest in the country for private attorneys taking public defender cases.) Some don’t have office help; some work out of their cars. Private prosecutors could do the same kind of cost-cutting. Under the $40 proposal, they would figure out pretty quickly to write on both sides of their legal pad pages and to reuse file folders multiple times.
Oh, cops may complain because — again, this is all about parity — their pay would be limited to $20 an hour when they’re working on one of these private prosecutor cases, the same rate paid to investigators hired by the $40 private bar defense lawyers.
The state would finally achieve some level of fairness — both sides would be represented by vastly underpaid professionals. There would be a lot less true justice getting done, but, hey, the injustice would be more equitably distributed.
And don’t forget the savings.
There are a few problems with the private prosecutor idea, but they are no different than exist now for the defense side. Counties with few lawyers, meaning rural counties up north, would have problems finding lawyers to take cases and would have to search and beg for them all over the state.
And oh, yeah, the lawyers willing to drive from county to county or across the state to handle these cases would get only $25 an hour for their travel time, same as on the defense side.
Many lawyers who have families to support would refuse $40-per-hour prosecution assignments, just as they do private-bar defense work. It is likely cases would be delayed, but the lack of defense lawyers already is delaying them, so what is the great harm?
Sure, more indigent defendants would lose their right to speedy trials through no fault of their own. And more pre-trial defendants would sit in jail for longer periods of time while they wait for prosecutors or defense lawyers (or both) to be appointed.
Still, the state would save money.
And poor people’s freedom is such a small trade-off.
Gretchen Schuldt is the executive director of the Wisconsin Justice Initiative Inc. The mission of the initiative is to advocate for progressive change in the Wisconsin justice system by educating the public about its real-life impacts and partnering with other organizations to achieve more just outcomes.
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