The Justice System
The Good Fight Gets Harder
As Legislatures Cut Prosecutors’ Budgets to the Bone, Caseloads Are Backing Up, and Fewer Young Attorneys Are Choosing to Stay
Posted Feb 1, 2004 5:20 AM CST
By John Gibeaut
Sizzle and sweat. That’s what summer is all about in the Florida Panhandle city of Pensacola, where older homes were built without air conditioning.
But if it weren’t for the Gulf Coast community’s sweltering climate, Valerie Erwin Prevatte might well be doing something else today. She credits the annual summer sauna with helping to chart her career path at an early age.
“I always wanted to be a prosecutor,” says Prevatte, now 33, as she reflects from behind the desk in her office across from the Old Escambia County Courthouse in the city’s historic district. “I used to come down to the courthouse and watch trials. We didn’t have air conditioning when I was a kid, so my mom would bring us down here where it was air-conditioned.
Watching folks risk jail and other disagreeable destinies was an unorthodox way to beat the heat. “Looking back, I can’t imagine why my mother brought us here,” Prevatte says. “But it absolutely fascinated me. The prosecutor was like a knight in shining armor. The prosecutor was the good guy. And back then, they won.”
Prevatte was accepted to law school, and by May 1997, she was back home in Pensacola as an assistant state attorney prosecuting misdemeanor defendants in Florida’s 1st Judicial Circuit, a four-county jurisdiction at the western end of the Panhandle. The salary: a whopping $26,000, standard pay at the time for a freshly minted graduate who had yet to take the Florida bar exam.
Six years later, Prevatte no longer works as an assistant state attorney. By Florida standards, she was making decent money for a prosecutor, about $45,000. But with two kids, ages 3 and 5, busting out of clothes and shoes and monthly payments of $900 for the mortgage and $400 for student loans, she couldn’t afford to put the bad guys away anymore.
“I drive a 1994 Dodge Intrepid that you can hear coming a mile away,” she says. “My husband literally drives a wreck. His car has been totaled out, and he’s still driving it.” In May, Prevatte left the career she had wanted ever since she was a girl. Last fall, she opened a solo criminal defense and family law practice in a shared office across from the courthouse. “I got a home equity loan, and here I am.”
Despite the aggravation of politics and pressure that come with the territory when the boss is an elected official, Prevatte regrets walking away from the table on the state’s side of the courtroom. “If I won the lottery tomorrow, I’d go back there in a heartbeat,” she says. But a stiff dose of reality can ground even the loftiest aspirations. “
You’re making a pittance,” Prevatte says. “You’re fighting this moral war. But at some point, you have to stand back, reassess yourself and decide what’s best for your family.” Prevatte’s disenchantment comes when times couldn’t be worse for prosecutors, public defenders and the judiciary in state courts. As a drooping economy has sent state budgets across the country plunging into whirlpools of red ink, legislators have reacted by cutting services across the board. Though courts and the criminal justice system typically consume only about 5 percent of a state’s appropriations, their already thinly stretched resources have fallen under the knife as well.
In the aftermath, some state systems already have flirted with disaster. Oregon Supreme Court Chief Justice Wallace F. Carson Jr. ordered the state’s courts to close on Fridays for four months last year and restricted appointments of tax-paid lawyers to defendants accused of violent felonies. Not only did prosecutors have to lay off their own staff members, the lack of counsel for indigents forced some of them to rearrange their priorities so otherwise jail-bound defendants wound up paying the equivalent of traffic fines instead.
State prosecutors from coast to coast warn they may have to take similar steps if cuts come any closer to the bone.
Besides directly hampering operations, recent budget reductions also have exacerbated the long-throbbing headaches that already had afflicted prosecutors and public defenders in their efforts to recruit talented young lawyers and keep them once the appeal of fighting the good fight succumbs to student loan quicksand.
“I think you could pick up the phone and call anywhere in the country and hear pretty much the same story,” says St. Louis County (Mo.) Prosecuting Attorney Robert P. McCulloch, president of the National District Attorneys Association.
Dire Straits in the Sunshine State
In Florida, both aspects of the money mess may come to a head early this year. Prosecutors plan to ask lawmakers to address salary issues at the same time the legislature must implement an amendment to the state constitution that makes the state take over paying hundreds of millions of dollars that counties previously had pumped into the justice system.
The state already had paid the salaries of prosecutors, public defenders and the judiciary. Now, it will pick up witness costs, court reporting, conflict counsel for indigents and other “essential” expenses that counties had covered. In the process, popular special programs covering everything from truancy intervention to pretrial diversion for first offenders almost certainly will fall by the wayside unless individual counties spend local money on them.
Voters in 1998 approved the amendment, called Revision 7. It rewrites Article V of the Florida Constitution, which establishes the judicial branch and designates the players’ functions in the system. Under the amendment, the shift of costs to the state was supposed to phase in over six years. Yet as the July 1 deadline approaches, legislators have yet to reallocate a single penny.
“I would be flabbergasted if they could even begin to get a handle on it,” says Circuit Judge Susan F. Schaeffer of the St. Petersburg-Clearwater area. Schaeffer chairs the commission charged with lobbying for the judiciary’s share of state support. She says legislators don’t appear to grasp the situation.
“We’ve worked on this for literally six years, and we have some good numbers,” she says. “But that’s all we can give them--just numbers. When we tell them, they just sort of gulp and say,
‘Thanks for the hard work.’ We’re all very, very fearful that the courts will not be adequately funded and that the horrors that unfolded in other states will unfold in Florida.” When lawmakers convene their 60-day session on March 2, the still crudely estimated $250 million to $300 million share of the state’s tab for the justice system will have plenty of competition. Demanding billions of dollars are voter-mandated constitutional amendments requiring free preschool for 4-year-olds and reducing class sizes for all grades. Also with its hand out is the Florida High-Speed Rail Authority, which voters authorized to construct a bullet train connecting Miami, Orlando and Tampa.
To be sure, prosecutors, public defenders and judges all sail in the same leaky boat that’s supposed to carry them through Revision 7 implementation. “We think it’s going to affect us dramatically, from where we park our cars to how we do our jobs,” says Nancy Daniels, president of the Florida Public Defender Association and the elected defender for the 2nd Circuit, encompassing the state capital of Tallahassee and surrounding counties. “We share a lot of concerns. There are just a hundred questions.”
Prosecutors in Florida and other states traditionally had suffered in silence, with indigent defense and the judiciary receiving most of the attention as court-funding crises come and go. Now prosecutors are starting to speak up, suggesting that legislators have too long taken them for granted.
Willie Meggs, state attorney for the 2nd Circuit, also serves as president of the Florida Prosecuting Attorneys Association. In that role, he’s trying to drum up a newspaper op-ed campaign to raise public appreciation for his side of the bar. “
They don’t know our problems,” Meggs says. “Prosecutors are viewed as people who do their jobs and don’t complain much. No one sees us slugging it out in the courtroom.”
While Florida state attorneys don’t fully trust the legislature to adequately fund costs associated with the constitutional amendment, they’ve been fighting the separate battle over salaries much longer. Salaries account for about 95 percent of the $262 million in state general fund dollars already dedicated to prosecutor offices, which employ 5,500 staff members spread across the state’s 20 circuits.
Starting pay always has been lousy. New prosecutors who had just passed the bar for years hovered around the $31,000 mark until the legislature bumped them up to $36,829 in 2002. That did bring beginning salaries in line with lawyers working for other state agencies.
Still, state and national surveys show Florida prosecutors on average lag more than $10,000 behind city and county attorneys working in the Sunshine State. Salaries for new prosecutors also don’t come close to beginning associates in private Florida law firms, who average $50,000. Nationwide, Florida prosecutors aren’t even within laughing distance of the $95,000 median for entry-level associates offered by private firms, according to an analysis by the state.
Many new hires come in dragging student loan debts so heavy they never can realistically expect to pay them off while in the service of the state. A 2002 survey published by the National Association for Law Placement, Equal Justice Works and the Partnership for Public Service found that half the respondents graduated law school with debts of more than $75,000.
Those who come to the state attorney make the sacrifice because they crave the trial experience, a hot commodity they can’t get anywhere else.
University of Florida grad Alisha W. McDonald wasn’t getting enough trial work in her public aid job at Northwest Florida Legal Services. Despite the $102,000 in student debt she and her husband had racked up, McDonald, 30, was willing to give up $4,000 in salary to get more trials under her belt.
“So I came here, and I took a pay cut to do it so I could advance my career,” says McDonald, who wants to be a judge. “I support a family of four on $39,000 a year.” She arrived at the 1st Circuit State Attorney’s Office in October 2002. A year later she moved up from misdemeanors to felonies.
McDonald and her husband, Eric, have qualified for government home loan assistance for low-income buyers. She drives a 1995 Ford Escort with a bad transmission. The couple carry just one credit card. If it can be called that, her only extravagances are work clothes. “Suits. That’s the only time I spend good money. Suits and shoes.” She’s still better off than her husband, who chalked up the lion’s share of the couple’s debt to become a teacher. But child care would cost the McDonalds so much that it wouldn’t make sense for Eric to give most of his paycheck to some stranger to raise their two daughters, ages 18 months and 3 years. So he’s a stay-at-home dad. Alisha figures she can endure the state attorney gig for another four or five years.
Down the hall, Tony Giraud has a similar tale. Giraud, 37, knew he never could afford a legal education at his hometown school--the private University of Miami. The Florida State University College of Law in Tallahassee and its $3,000 annual tuition was the ticket for him. Of course, $3,000 doesn’t cover books or living expenses, and Giraud borrowed to the max. Then the 1998 grad got married, gaining an instant family that includes three stepchildren.
“You want to know how much my student loan payment is?” Giraud asks. “It’s $800 a month, and I don’t have it. I’ve got a family. I’ve got house payments, and I’ve got the kids. We basically live month to month. At the end of the month, we’re broke.” Giraud already has consolidated his loans, but still is locked in at 8 percent interest that he can’t renegotiate even though rates have fallen.
The federal government does help its employees with student loans through a forgiveness program that can trim their payments by as much as $6,000 a year, up to a total of $40,000. Florida legislators and Congress have spurned similar programs for state lawyers. “You’ve got the word ‘esquire’ behind your name, and people inherently think you’ve got money,” McDonald says. The most recent attempt to help state prosecutors and public defenders went down in 2002 because Congress attached it to the controversial Innocence Protection Act.
The DAs association opposed the act because of standards for DNA testing and defense representation in capital cases. The program is back before the current Congress, and the DAs hope it will survive this time as part of the Higher Education Act of 1965, which is up for renewal this year.
Though Florida did increase starting pay for new prosecutors, it stopped there. That means significantly more experienced lawyers make just a few thousand dollars more than recent grads. It accounts for much grumbling and evaporating enthusiasm for the job, prompting many experienced attorneys to leave.
Florida state attorney offices consistently experience turnover exceeding 20 percent. Perhaps more telling, just 54 percent of new Florida prosecutors last for three years. Though high turnover is common among young lawyers in other kinds of jobs, it especially affects prosecutors because green assistants form larger proportions of their staffs than in private practice.
The Florida prosecutors association is asking lawmakers for another $19 million to stretch out the compressed pay scale. But the state attorneys say they’re already in a $7 million hole because of a series of budget cuts that began in 2001. As they try to claw their way out, many worry that the legislators
will start shoveling more dirt on top of them as they grapple with the funding shift.
Things Are Tough All Over
Nevertheless, Florida prosecutors live the high life compared with some colleagues elsewhere. Michael D. Wims is special prosecutions chief for the Utah Attorney General’s Office. He also co-chairs the ABA Criminal Justice Section’s Prosecution Function Committee.
The office’s litigation budget to cover pesky stuff like trial exhibits and crime lab work? Zero. Cost of living pay increases over the last three years? Zero Wims’ unit steps into high-profile cases, such as capital murder and political corruption, that either are too complex or pose conflicts for county prosecutors in isolated areas, where just one lawyer may form the entire staff. Consequently, while most state prosecutors can afford to take a chance on brand-new lawyers, Wims’ office only can hire veterans.
But even with 10 years’ experience, a prosecutor working for Wims can’t start any higher than $49,000. Just going to work for other government agencies can mean a raise of as much as 50 percent.
The tools of the trade are, well, primitive. Five lawyers in one unit share a single cell phone and a laptop computer that still runs Windows 98. Wims once had to dip into his own pocket for some poster board and Velcro so he could display a murder victim’s photo to jurors without having it tumble onto the floor. He estimates that he spends half his time doing clerical work and other non-lawyer tasks, a frequent complaint in many jurisdictions. Judges are less than sympathetic when Wims explains he can’t meet deadlines for responding to defense motions because he has no secretary.
“Decisions are being made on economics rather than on what is a just outcome,” Wims says. That includes forgoing a $500 DNA test in an incest case where the victim was pregnant. Because consent wasn’t an issue, positive identification of the father would have meant a slam-dunk for the state.
“Our litigation budget is zero,” Wims reiterates. “We had no money, so we didn’t order it.” Michael D. Schrunk can top that with one hand tied behind his back. In fact, for a while it looked like the district attorney in Portland, Ore., literally was working with just one hand free. Schrunk could do little more than watch last winter as voters rejected a temporary tax hike that would have kept the courts and the rest of Oregon open until the new budget year began in July. But from March 1 through the end of June, courts closed on Fridays and judges only appointed counsel for violent offenders. That meant immediate release for car thieves, drug dealers and others arrested for lesser crimes. All they had to do was walk into court, claim indigence and hit the street.
“We had to make some awful choices,” Schrunk says. “I pleaded out as many nonviolent felonies as I could. You kind of had to hold your nose.”
With the exception of drunken driving and precursor sex charges such as indecent exposure, Schrunk’s office handled all misdemeanors like traffic tickets with no possibility of jail, meaning the state wasn’t obligated to pay for those defendants’ lawyers.
Schrunk went ahead and obtained indictments of some 700 nonviolent felony defendants in cases where their prior records or circumstances of the crime rendered plea bargains unacceptable. To avoid speedy trial problems, Schrunk held the indictments and didn’t file them with the court. Now he’s waiting to see how many show up for belated court dates now that funding has been restored.
Then came the ultimate paradox. With blessings from public defenders and the American Civil Liberties Union, Schrunk sued to force judges to assign counsel to indigents. “I never thought I would sue a judge to appoint lawyers for criminals I was trying to put in jail,” Schrunk says. “It was a sort of an unholy alliance.”To no one’s surprise, Schrunk’s state court lawsuit went straight down the drain. A separate federal suit filed by public defenders remains pending in the 9th U.S. Circuit Court of Appeals in San Francisco. Meanwhile, a petition drive is under way for another referendum to repeal a tax package legislators finally approved to get Oregon running again. “If that passes, we’ll be right back in the same situation we were in in March,” Schrunk says.
Braced to Live With Even Less
Back in Florida, legislative committee meetings on implementing Revision 7 began in the fall, but a detailed estimate on how much the amendment may cost wasn’t expected until at least mid-January. Richard E. Schoditsch already sees shades of Oregon. “We’re pretty much resigned to the fact that we’re not going to be funded at the level we are now,” says Schoditsch, executive director for the 1st Circuit State Attorneys Office. “We’re going to lose money. My worst fear is that if we can’t adequately fund the system, we’re going to have to pick and choose our cases.”
Before Revision 7, prosecutors and public defenders billed counties for witness costs and other expenses with boilerplate motions that judges routinely signed. The counties had had enough by the late 1990s, and the amendment passed largely due to their efforts. “So here we go with a revision to Article V of our state constitution that was intended to improve the administration of justice,” says Florida Supreme Court Chief Justice Harry Lee Anstead. “So what happened? Pretty much for years, this revision was ignored.” Despite an abiding distrust for the legislature, Florida prosecutors are looking to one of their own to shepherd them through the storm.
Rod Smith first gained recognition as the state attorney from the college town of Gainesville when he personally won the death penalty for serial killer Danny Rolling in the brutal 1990 mutilation murders of five students. Today, Smith is a Democratic state senator who chairs a special committee attempting to implement Revision 7.
“We call him the designated spear-catcher in this thing,” Schoditsch says. “But Rod is probably the best person there. He’s smart, and he knows the system.”
About all Smith is willing to promise for now is that Florida’s system won’t look like a Cadillac in the end. But the legislature still will produce “something better than a Yugo,” he insists.
“I don’t think you can avoid all the implications of changing the system,” Smith says. But some wonder just how effective Smith can be when lawmakers start grinding teeth and budget axes as the deadline approaches.
Despite Smith’s unquestioned qualifications for the job, skeptics wonder why the Senate’s highly partisan Republican leadership would give it to a Democrat. “I think they looked around and said, ‘Why throw a good Republican’s career away?’ ” Smith says, an only half-joking tone in his voice.
John Gibeaut is a senior writer for the ABA Journal.