This fall, as Wisconsinites head to the polls, voters in only six will cast a ballot in a contested race for district attorney. Of those six, three will be decided in the August primary because only candidates of one party are running.
Florence, Langlade, Menominee and Shawano, Pierce, St. Croix and Waushara counties are the only ones with contested races this year. So while the state and nation grapple with questions about the future of the criminal justice system, the people responsible for the criminal prosecution of more than five million Wisconsinites can’t be held accountable by their constituents. Wisconsin has 72 counties.
A lack of choice in DA races isn’t new in Wisconsin and it isn’t isolated to just this state. In the last three cycles — terms in Wisconsin are on the same schedule as presidential elections — just one county has had a contested race each time, according to a 2018 analysis by The Appeal.
Almost half, 33, of the counties in the state haven’t had a DA race with more than one candidate since before 2008, while in that same time period, 29 counties have had just one contested election, the analysis found.
Of the 33 counties that have been dominated by uncontested races for more than a decade, several — Dodge, Kenosha, Ozaukee, Rock, Washington and Waukesha counties — are in the more populated southeastern corner of the state.
Iron County, the only one that has had three straight contested elections, doesn’t have a challenger this year. Even though incumbent DA Matthew Tingstad was recently the subject of an investigation by a special prosecutor who found he exhibited “incredibly poor judgment and short-sighted thinking” while falsifying information on a subpoena. Tingstad is also facing accusations that he lives in Michigan, not Iron County, as is legally required.
Wisconsin has long held that DAs must answer to the people, even though they rarely have to.
“We have said that, in general, the prosecuting attorney is answerable to the people of the state and not to the courts or the Legislature as to the way in which he exercises power to prosecute complaints” former state Supreme Court Chief Justice Shirley Abrahamson wrote in 1979.
But how is the prosecuting attorney answerable to the people if he or she never gets challenged?
“For me the problem is if there is no challenger, there is no place where the voters can hear about the prosecutor’s plans,” Ronald Wright, law professor at Wake Forest University, says. “You have no public airing of what the choices are. It’s bad for democracy if we aren’t thinking out loud what our choices should be.”
In 2008, Wright published a paper analyzing how often prosecutor elections go uncontested. The paper, “How Prosecutor Elections Fail Us,” analyzed prosecutor races from 1996-2006 across ten states — including Wisconsin. Wright found that DAs run unopposed in 85% of elections.
More than a decade since he published his research, Wright says the situation has improved a little, especially in more urban districts. But there are still a lot of uncontested races and major structural factors to overcome to fix the problem.
“People started noticing that prosecutors matter, they’re not just making automatic decisions, they’re setting the law based on priorities,” he tells the Wisconsin Examiner. “People started realizing, ‘Hey, these people have a real impact on the community.’”
While the power of incumbency in any election matters, Wright found that when DAs are opposed they only win about 69% of the time.
A much more basic barrier to getting more candidates on the ballot — especially in rural counties — is there’s a small pool to begin with.
First, they must be a lawyer. That person also probably needs to have a focus in criminal law. Even from the pool of criminal lawyers in a given county, according to Dodge County DA Kurt Klomberg, the potential candidates need to have a desire to work for the government.
“Even within the criminal law, prosecution is different from criminal defense work in so many different ways,” Klomberg, the president of the Wisconsin District Attorney’s Association, says. “You have to be comfortable with legally, the issues with being a prosecutor. There are a lot of things stacked against you, you have to bear the burden, rules of procedure that favor the other side.”
“Then there’s the ideology issue,” he adds. “Some people don’t feel that they want to work for the government, work for the state. They want to be the defense attorney, which is honorable. They do very important work and they protect the constitution, but not everybody feels like they want to go work for the government.”
There’s also the factor that in any county, the most qualified candidates already work in the DA’s office. If an assistant DA (ADA) runs and loses, what’s it like going into the office the next day?
“It takes a brave actor to stand up and run against the boss,” Lanny Glinberg, director of the University of Wisconsin Prosecution Project, says.
Glinberg also points to the decline of local news as an impediment to contested races. If the community isn’t aware of the daily goings on in the courthouse, how will they know if there have been any problems?
“Another factor — how well informed is the public of the role of district attorney?” he says. “The most powerful actor in the criminal justice system in terms of discretion. The public needs quality investigative journalism to know that. That’s in shorter and shorter supply.”
On the flip side, if the public is happy with the prosecutor’s work, they may feel no need to search for a qualified challenger, says Klomberg.
“Maybe the person hasn’t had a challenger because they’re doing a good job,” Klomberg, who hasn’t faced a challenger since taking the position in 2010, says. “They’re not getting a challenger in many situations because the community is satisfied with the work they’re doing.”
Both Glinberg and Klomberg say problems with the way prosecutors in Wisconsin are paid and with staffing has also probably created a disincentive to run for the seat.
Until 2019, the number of allocated ADAs in the state remained the same, meaning understaffed offices struggled to keep up with the caseload, according to Glinberg.
“[There was] a real shortage of positions authorized by the state for assistants,” he says. “The consequence is that for a lot of counties there are real internal management problems. Which makes it an unpleasant managerial challenge. What do I need that headache for? Maybe that will improve with the Legislature increasing the roster for assistants. Maybe from that it won’t be as unattractive to manage an office.”
“The Legislature’s neglect of the program for a long time I think presented another challenge to recruiting good candidates,” Glinberg adds.
On top of the managerial problems, Klomberg says the pay scales for prosecutors can mean it doesn’t make financial sense for ADAs to run for the head job. The salary for DAs is determined using a formula based on the size of the county while the salary for ADAs is a progression plan with annual raises.
What this means is that a veteran ADA in a small county would have to take a pay cut to run for the DA position.
“What’s the incentive?” Klomberg says. “There isn’t a lot of incentive to go be district attorney in this state. In many counties, the assistant district attorney is making more money than the district attorney. We have assistant district attorneys who are eminently qualified and might even be interested in being DA when the [current] DA decides to move on. In one county they’d have to take a $25,000 pay cut. Why take on all the headaches and take a huge pay cut?”
Because DA races in Wisconsin are partisan, it also takes effort from the state’s political parties to recruit qualified candidates.
“This might be one of those things where you have to convince party leaders this is worth making a priority for candidate recruitment effort,” Wright says.
In a decentralized race like DA, this proves challenging for the state party, according to Democratic Party of Wisconsin spokesperson Courtney Beyer.
“Candidates for DA, like most local offices, are recruited through county parties or other organizations like Wisconsin Progress that specifically focus on local candidate recruitment. DPW does not have a centralized, consolidated recruiting program for DA races, but we do, however, support any Democrat running a competitive campaign when they do decide to run for office,” Beyer says in an email. “Our role at the party is generally more focused on candidate support than recruitment. It’s also important to mention that there isn’t a campaign committee for DA’s like there is for the Assembly or Senate … which makes centralized support and recruitment more difficult.”
According to Klomberg, the focus needs to be not just on finding candidates, but finding candidates who can do the job well.
“The district attorneys have a critical role in the criminal justice system,” Klomberg says. “I certainly think it’s a deeper issue, but are the right candidates running for those positions. It’s something we’re going to have a lot of conversations about over the next couple of years.”
A spokesperson for the Wisconsin Republican Party did not respond to a request for comment.