The current system is vulnerable to politics and perverse incentives

By Julie Grace and Patrick Hughes for the Badger Institute

A complex formula used to determine which counties get more money from Madison to pay for state-funded prosecutors creates perverse incentives for district attorneys to over-charge cases.

And rather than proposing a new formula, politicians — including the current governor — have long parceled out new prosecutor positions in ways that appear to be either arbitrary or politically motivated.

The problematic formula was developed in the 1990s when Wisconsin lawmakers trying to provide property tax relief decided to use state, rather than county, funds to pay for assistant district attorneys.

Instead of making their own hiring decisions with county funds, district attorneys must now repeatedly petition state officials for more positions to help prosecute local cases. They are also required to track charging data according to a formula created by the state to calculate their offices’ workload.

The formula creates a situation in which prosecutors are incentivized to over-charge crimes in order to inflate their workload and justify more positions. Politicians, at the same time, often ignore the data and make decisions on a more arbitrary or political basis.

The problem came to a head most recently with Gov. Tony Evers’ 2019-’20 state budget, which included a $7.8 million increase in spending for 65 new prosecutor positions. While both the Legislature and the governor’s office agreed that the positions were needed (only nine new prosecutors have been added statewide since 2005), the governor ignored the formula in at least some respects and reallocated some positions so that Milwaukee and Dane counties — the centers of his political support — benefited more than the formula allowed.

Republican legislators were critical of the governor’s decision, saying the formula that they use was a better, more fact-based approach.

The formula

Rep. John Nygren (R-Marinette), who has been in the Legislature since 2006, says Evers is not the first to let politics skew what should be an analytical approach.

“We’ve been hearing about shortages for prosecutors for years,” says Nygren, co-chair of the Joint Committee on Finance. “As long as I’ve been around, these types of positions are usually based on political clout, but we worked with a coalition of prosecutors and looked at caseload studies to see where those positions should go.”

“We were looking for some metric to use,” Nygren says about the Legislature’s approach. “It’s a constant theme every budget — people asking for positions. Having it based on a formula makes more sense and is an easier answer.”

There is some logic to the current formula.

The number of requested positions is determined by what’s known as the “weighted caseload formula” and is based on the number and type of cases charged in the county. More serious charges are weighted more heavily because they take more time to prosecute.

Misdemeanors and traffic violations are weighted at 2.91 hours, whereas a more complex case, such as a termination of parental rights, is weighted at 30 hours. Most felonies are weighted at 8.49 hours, while the most labor-intensive felonies, such as Class A felony homicides, are calculated at 160 hours.

The State Audit Bureau collects the number of charges filed in each county to determine how many cases are calculated with the weighted hours averaged over three years.

Every full-time prosecutor, according to the formula, has 1,162 hours available each year to work on cases (after vacation, sick leave, training and other non-applicable time is subtracted from a 2,080-hour work year). If the number of hours needed to handle the total caseload exceeds 1,162 per prosecutor, the formula dictates that the county deserves more state funding and prosecutorial help.

For example, in 2015-’17, Dane County had 39,248.98 hours needed based on cases charged. It has 28.85 full-time equivalent (FTE) positions with 33,524 hours available (28.85 staff members x 1,162 hours). To reach its recommended staffing level, Dane County would need 4.93 additional positions.

Since only a handful of counties are fully staffed (most are closer to 70%), the Legislature recommended giving Dane County 0.15 positions, which would have increased its staffing rate to 86%. Evers’ ultimately gave the county one full position, which increased its staffing level to 88%.

Meanwhile, Evers’ plan increased Manitowoc County’s staffing level to only 62%, whereas the Legislature’s plan would have brought it to 72%.

Evers ignores formula

Although the Legislature allocated new positions based on the weighted caseload formula, Evers used his veto authority to remove some assignments and to shift others to different counties.

“I object to earmarking the positions to certain counties instead of assigning them to where they are most needed,” Evers said in his written veto message. “I am directing the Department of Administration to work with the State Prosecutors Office to allocate the positions to counties in a manner that considers need holistically, including staffing needs based on creation or expansion of treatment alternatives and diversion programs, meeting with victims prior to charging, addressing backlogs and utilizing available workload analyses.”

The DOA responded to the governor’s directive with a redistribution of the new positions but did not indicate how the decisions were made. Instead, a letter from DOA to the governor referenced (almost word for word) the language in the governor’s veto message. When asked via email for more details on the decision-making process, the Evers administration pointed to a September announcement from the governor that said the positions “were allocated throughout the state based on requests made by the county district attorneys, with 56 Wisconsin counties receiving a total of 64.95 new positions.”

Prior to the addition of the new positions, the formula determined that the state was short 166.03 full-time positions. While most counties were below their calculated needs, a few counties including Milwaukee were above their calculated requirements yet still received new positions. Many others that were below their staffing level received no new positions.

A fair calculation?

According to some prosecutors, the formula does not accurately reflect their workload. Milwaukee County District Attorney John Chisholm calls the weighted caseload formula a “longstanding issue” for Milwaukee, noting that the county is home to 19% of the state’s population but charges 54% of the state’s violent crimes and holds 39% to 49% of the state’s jury trials.

Of equal concern, the formula may disincentivize prosecutors from seeking alternatives to criminal sentencing and incentivize others to over-charge in order to inflate their workload and receive more positions. Prosecutors may be tempted to over-charge certain crimes as felonies (since they are weighted more heavily) than misdemeanors.

Imagine a crime where an offender is arrested for possession of a controlled substance. Police discover five bags of marijuana with five grams in each bag. The wide discretion given to prosecutors (and differences in local laws) could result in several different cases with different impacts on the offender and the accounting in the weighted caseload formula.

If the offender is in a community that handles low-level marijuana possession through city ordinances, such as Milwaukee, the offender would simply receive a civil citation and pay a fine. There would be no charges, and the county would receive no credit hours.

If the offender lives in a jurisdiction that does not have a marijuana possession ordinance, he or she could be charged with a misdemeanor controlled substance count if it was a first offense. This results in a formula calculation of 2.91 hours for the district attorney’s office.

But the offender could also be charged with a possession of a controlled substance with intent to deliver — a Class I Felony. The district attorney could charge the felony because drugs that are separated into individual packages are often considered evidence of intent to distribute. This would result in a formula calculation of 8.49 hours.

“We have to recognize that whenever the government incentivizes anything, that’s the outcome you’re going to get,” says Winnebago County District Attorney Christian Gossett, referencing the over-charging of cases as a result of the weighted caseload formula.

While the formula can lead to over-estimating staff needs in some counties, it also can result in underestimating the need in others. For example, deferred prosecutions — deals made by prosecutors to not charge an offender in exchange for the offender agreeing to follow certain conditions or seek treatment — are not counted in the formula. This may underestimate the workload of prosecutors who focus on deferred prosecution or disincentivize others from engaging in the practice at all.

Diversion programs often require offenders to make victim restitution payments, attend classes, participate in community service or complete drug or alcohol programming. Processing and monitoring offenders in these programs require staff time, but counties do not receive any credit hours in the formula because an offender who completes a diversion program is never charged.

For example, if two counties each had 100 misdemeanor cases and one county charged all 100 cases, it would receive 291 credit hours. If the other county uses diversion programs for 25 of the cases, it would receive only 218 credit hours for the 175 charged misdemeanors and 0 credit hours for the 25 diverted cases.

“Every time you divert someone from the criminal justice system, you get zero credit for it,” says Gossett. “We charge cases based on what we think they’re worth, not what we think we can get credit for.”

Nygren acknowledges the value of diversion programs. “They’re a significant investment, but they work to reduce recidivism,” he says. “While they’re more labor-intensive, we need more prosecutors to be involved with them.”

The formula also fails to count cases without an initial court appearance or cases referred to prosecutors but declined, further underestimating a prosecutor’s workload.

“It’s been a perennial problem when looking at caseload as a metric, as a workload proxy. The formula grossly underestimates the number of hours needed,” says Chisholm. “It doesn’t make sense to incentivize issuing large numbers of cases to show you need additional positions. It creates a culture of charging everything and then dismissing charges at high rates.”

A 2007 Legislative Audit Bureau (LAB) document also noted the unintended outcomes that might occur from weighting felonies higher than misdemeanors in a formula that’s supposed to determine position allocation: “Prosecutors could increase their measured staffing needs by filing felony charges on cases that could be misdemeanors. After filing, felony charges may be reduced to misdemeanors as one method of encouraging defendants to accept settlement offers.”

The LAB report ultimately recommends improving the formula by including time spent on cases not filed, using a better data system to calculate time spent on all DA functions and conducting a time study to reevaluate prosecutors’ time requirements.

Potential solutions

Local prosecutors in the United States are sometimes funded at the local level. In Wisconsin, the problem with the current funding system is twofold.

First, if counties are required to collect and submit detailed information regarding charging practices to determine staff workload, why isn’t that information being used? The formula was referenced during the last budget cycle by the Legislature to justify the allocation of nearly 61 new positions throughout the state. Yet the ultimate determination by the governor’s office largely ignored these findings.

Second, if the weighted caseload formula underestimates prosecutors’ workload or creates adverse incentives involving charging and case outcomes, a modified or alternative system should be considered.

One possible solution posed by Gossett would be to allocate resources using a combination of population and crime statistics. Chisholm, meanwhile, suggests a system with more local control where assistant DAs would once again be county employees and would answer to a county board, similar to the system in Minnesota.

It’s clear that the current system is not working and the 1990 decision to make assistant district attorneys state employees has had unintended consequences. Some county DA offices are overstaffed; some are understaffed. The weighted caseload formula is supposed to determine need and allocate positions, but it’s rarely used — and when it is used, the formula may create perverse incentives with regard to charging practices and deferred prosecution or diversion programs.

Prosecutors in Wisconsin are given extensive authority to decide who gets charged with a crime and what the appropriate consequences are. These decisions affect thousands of individuals and every community across the state, and they must be made without perverse incentives. Properly funding prosecutors’ offices — thereby eliminating the incentive to over-charge — is a key factor in ensuring a fair, free and safe society.

Julie Grace is a Badger Institute policy analyst. Patrick Hughes, former Wisconsin Department of Corrections assistant deputy secretary, is a corrections consultant for the institute. Reposted with permission.

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