After a 135-day investigation and nearly 1,000 pages of reports, the verdict on the charges when Jacob Blake was shot by a Kenosha City police officer in August 2020 was at the discretion of a single person: the Kenosha District Attorney.
“If you don’t have a case, you can prove it beyond doubt … then you have an ethical obligation not to prosecute such a case,” Kenosha District Attorney Michael Graveley said at a press conference on January 5, 2021.
As elected officials, district attorneys act as the local criminal justice gatekeeper and decide which crimes are charged and arrive before a judge. However, for an official who receives significant attention and is exposed to public scrutiny – especially when it comes to high-level indictment decisions – prosecutors often remain unchallenged on the ballot.
“I think if we increase competition in these areas, the public will have a choice,” said Kurt Klomberg, Dodge County’s district attorney. “I think it’s important that we have these options.”
Only a handful of prosecutor races were held during the 2020 general election – with even less contested seats in the primaries. Klomberg said the absence of contested races prevents prosecutors from presenting their cases to voters and affects voters’ ability to deliberate how these elected officials do their jobs.
When there are competitive races, Klomberg said, the public is “told that this is the District Attorney’s platform: these are the things that we are going to prioritize, these are the things that we want to achieve and they can look at and decide who they want in this position. “
Given such an impact on local politics, what causes so few lawyers to run for district attorney? Bayfield District Attorney Kimberly Lawton said it was a tough job.
“You wake up at three in the morning, you have to deal with some things that are extremely traumatic even for the prosecutor,” she said.
“It’s hard to say, ‘Get into a public position here where you get scrutinized by pretty much everyone – which is good and appropriate, and we should be – but get less money than if you were in the private sector would be. ‘”Lawton added.
Bridgit Bowden, a reporter for Wisconsin Public Radio, investigated why so few seats are being questioned by prosecutors.
Klomberg said wage differentials can be a real factor in deterring seasoned attorneys from running for district attorney. Assistant district attorneys are set on a wage scale nationwide, while DA salaries vary based on the population of their district – with those in smaller districts receiving lower wages.
“The assistant prosecutors don’t want to move up and become district attorney because they either cut their salaries or for most of them they look into their crystal ball and say, ‘By then, next term is over, I’m going to earn more than that district attorney. Why should I So put my pressure on my family? ‘”he said.
Klomberg serves as president of the Wisconsin District Attorneys Association and advocates the creation of a flat fee for prosecutors, similar to how judges are paid in the state.
“No matter what county you are in or what the population is, all judges earn the same amount,” he said. “We don’t want to do this because we just want to fill our pockets, it has to do with recruiting and retaining our best people in the position of elected prosecutor.”
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Klomberg added that recruiting prosecutorial candidates in rural areas where not many lawyers live is an added stress. Lawyers with private practice can practice as lawyers in any county, while a prosecutor must live in the county in which they work. Klomberg said a financial incentive to move to rural areas could attract more DA candidates.
Low sales among prosecutors can also keep traditions embedded in the criminal justice system.
“We see that prosecutors have a lot of power over fee decisions – they have a lot of power over whether to charge at all (or send someone on a diversionary program,” said Molly Collins, advocacy director for the American Civil Liberties Union of) Wisconsin.
“With the system we have now, people really want prosecutors to make different decisions,” she said.
“On a case-by-case basis, a prosecutor must look not only at the charge, conviction and detention, but the other costs of initiating a crime and finding a conviction,” said Lanny Glinberg, University of Wisconsin-Madison law professor and director of the school’s law enforcement project during an interview with Frederica Freyberg on May 28 about Here & Now.
“Not only is the financial cost of restricting a person,” he added, “there is a real social cost too.”
Collins said that while diversionary courts for crimes such as drug offenses provide an opportunity to bypass the conventional criminal justice system, they often benefit white defendants more than defendants of other races. A change in prosecution could also change these priorities.
However, this change can be slow, according to Glinberg.
“It is risky to consider a new model of law enforcement or to be more sensitive,” he said. “What was politically safe is to run against crime, against criminals.”
Glinberg added that some areas prefer a more traditional model of law enforcement than others, as district attorneys are elected from county to county.
The next Wisconsin district attorney races will be on the ballot in 2024. Collins said challengers to incumbent district attorneys can be a key factor for activists looking for changes in prosecutor’s decision-making. This is only part of the picture – especially for broader questions such as systemic violence, black Wisconsinites have experienced from law enforcement officers.
“I still encourage people to run for prosecution and I still encourage prosecutors to hold the police accountable, but I think we will always see some reluctance there – at least until the police systems change a bit.” , she said.
“I think we have to do a lot to resolve police violence against black people, but there is a way to deal with it,” said Collins. “There could be more.”
PBS Wisconsin Executive Producer of News Frederica Freyberg and Bridgit Bowden, Special Project Reporter for Wisconsin Public Radio, contributed to this story. These video and audio reports are a WisContext collaboration between PBS Wisconsin and Wisconsin Public Radio.