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August 5, 2011

Is it public defenders or public prosecutors who are more overworked and underpaid?

The provocative question in the title of this post is prompted by this news report via the ABA Journal headlined "Assistant State’s Attorney Starting Pay May Jump from $40K to $53K in One Chicago Burb." Here are the details from this story (with commentary to follow):

Government entities are belt-tightening throughout the country, but there's good news for young lawyers in one suburban Chicago location. Saying that he's tired of seeing seasoned prosecutors move to other collar counties with higher pay and lower caseloads, the Kane County State's Attorney is proposing to raise starting salaries in his office, the Courier-News reports.

The proposed salary hike is significant — starting pay would leap from $40,000 to $53,000 under the plan announced today at a press conference by Kane County State’s Attorney Joe McMahon.  He also wants to see upward adjustments for those with experience. McMahon says starting salaries for prosecutors in neighboring counties are: $54,100, DuPage; $53,700, Lake; $51,600, McHenry; and $51,600, Will.

Despite the downturn, "we have to be aware the failure to pay a competitive wage will lead to our talented and experienced assistant state’s attorneys going to other counties," he said.  "I want the best and brightest to work here in Kane County.  That has a direct impact on public safety.”

Though I do not know the cost-of-living realities around suburban Chicago, I do know that many law students leave law school with more than $50,00 dollars in debt.  (This recent article suggests that the average debt for a law school graduate is now approaching $100,000.)  This reality means that even a starting salary of more than $50K seems unlikely to be much more than a living wage for an ASA in Kane County, and it is especially hard to imagine many top-flight students (the "best and brightest") who have a chance of landing a six-figure private law job would readily be able (or eager) to afford to become a public prosecutor.

Of course, as the question in title of this post is meant to suggest, this problem is surely not unique to Kane County, nor to the offices of county prosecutors.  Relatively speaking, most public-sector legal jobs pay much less than private-sectors alternatives, and this is probably especially true among the so-called best and brightest.  But, because I share the view that the quality of lawyering in the criminal justice system has a "direct impact on public safety," this strikes me as a crime and punishment issue as much as it is a labor and employement issue.   Do others agree?

August 5, 2011 at 11:32 AM | Permalink


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The post doesn't seem related to the title ... there's no discussion of the relative wages of DA's vs. PD's. Probably because in many counties and states these are locked to each other (at least here in California). It is as much a "crime and punishment issue" to have low quality prosecutors as defense attorneys as IAC claims will rise in the absence of an adequate defense.

Is the title based on an assumption that Public Defenders complain more (or are covered more in the press) about low pay more while prosecutors struggle in spite of their similarly low salaries? It seems to be a baseless jab and unrelated to the article/post otherwise.

An alternative or additional response to the problem of recruitment of committed and bright public service attorneys is Loan Repayment Assistance Programs like UC Berkeley Law School's (apparently we've changed our name from Boalt). So long as the recent graduate stays in public service work their loans are taken care of so they are not precluded from these positions. State wide programs like in Texas and even federal programs (which are currently quite limited) will be the broader solution to quality public lawyers being available for each side.

Posted by: Zeb | Aug 5, 2011 1:29:37 PM

The question in the title, Zeb, is largely a result of my sense that we tend to hear a lot more discussion of the need to increase the resources given to criminal defense lawyers than to prosecutors. Indeed, both the current and former Prez have expressed concern about inadequate funding of defense attorneys to provide competent representation. (I believe Obama and/or his DOJ has a special office/position devoted to this issue, and Bush talked about inadequate funding of capital defense lawyers in his 2005 state of the union address.)

Moreover, if it is true that DA and PD have salaries linked in many areas, I am quite surprised and somewhat disappointed that there have not been joint efforts by state public criminal lawyers to get salaries increased (or, better yet along the lines you suggest, to have the govt help cover law school loans if/when a person commits a certain # of years to criminal justice public lawyering).

Finally, what I was really hoping I might prompt is a bit of sparring here between the DAs and the PDs about who has it tougher. I think both groups fail to get the resources they need to serve our public safety needs well, and that is just another reason I wish we would take a lot of the monies we waste in overincarceration and invest more in the front end of the criminal justice system.

Posted by: Doug B. | Aug 5, 2011 1:55:36 PM

Lots of places don't have public defender offices. In Michigan, there are public-defender offices in Detroit, Ann Arbor, Bay City, Sault Ste. Marie, and, I think, one other location. All have some back-up system to handle overflow and conflict-of-interest cases. Most of the 83 counties rely on contract defenders, who handle all, or part, of the case-load for a fixed annual sum. Othe places, including my county, have a roster of attorneys who accpet appointments, and are paid an hourly rate. In my county, the rate is $52/hour, relatively among the highest in the state. This rate was set 20 years ago. In the meantime, police, prosecutors, judges, and their staffs, have received regular, annual, raises. My secretary makes far more than she did 20 years ago, but I'm asked to do more complex work--dealing with DNA evidence, computer searches, GPS-tracking and various kinds of electronic monitoring, for example, for the same rate as 20 years ago, with a dollar that buys about 60% of what it did 20 years ago.

Posted by: Greg Jones | Aug 5, 2011 2:22:07 PM

I think at the state level both are generally underpaid -- the opposite is true at the federal level.

Posted by: Steve Prof | Aug 5, 2011 3:50:52 PM

Most jurisdictions do not link public defender salaries to prosecutor salaries. Those that do, like LA, did so after heroic efforts by the public defender's office to get them linked. The public defender consensus is that linking salaries is one of the great long-term fixes to funding a public defender, since paying prosecutors money is always politically popular, most politicians are former prosecutors and no politician wants to be accused of cutting money to fight crime.

Although even if salaries are linked the defense still has expenses a prosecutor's office doesn't have. The defense needs to pay for investigators and experts, while prosecutors have the police for all that. If the jurisdiction has contract attorneys instead of a public defender office then the defense pays a greater percentage of money in administrative costs because they lose the benefits of an economy of scale.

And, since Professor Berman wants conflict, prosecutors don't need much money because a parrot that can say "I will offer a low-end guidelines sentence if the defendant pleads guilty" and "and then what happened" can do more than 50% of a prosecutor's job.

Posted by: Paul | Aug 5, 2011 4:58:21 PM

Paul --

It would do absolutely no good for a prosecutor to offer a low end of the guidelines recommendation, since the defense knows that's what's overwhelmingly likely to happen in any event. At least 45% of the sentences are at or near the low end -- and another 45% plunge below even that by way of downward departure. It would be like a prosecutor trying to induce a plea by saying, "If you take the deal, I'll do my best to see that the sun sets in the West."

As for being a parrot, I guess defense lawyers qualify at least as much as prosecutors, because, when it comes to sentencing, they just go to the Exuse Du Jour word processor and print out the rote filing:

"My client was a victim of [fill in the blank][lousy schooling, an abusive step-father, PTSD, brain lesions, urban survival syndrome (i.e., being a thug, for those who don't know), falling in with the wrong crowd, drinking, drug abuse, the legions of Nazis on the police force, too many Twinkies]."

I could do this in my sleep and I'll bet you can too.

Posted by: Bill Otis | Aug 5, 2011 5:43:23 PM

As to the question posed by the main entry: My sense is that both prosecutors and defense lawyers go into it less for the money than for the fulfillment of what each sees as a big part of his mission in life.

Defense lawyers tend to have convinced themselves that the accused is among the downtrodden, and is at least as much a victim as a victimizer.

Prosecutors tend to have convinced themselves that even a poor background does not prevent a defendant from making his own choices, and when the choice is to steal (or sell meth or what have you), he's earned his jailtime.

To choose a career in criminal law on either side is to recognize that you're not going to be making the dough other lawyers are getting, and pretty much to accept this fact in exchange for the satisfaction -- as each side may see it -- of doing his job.

Posted by: Bill Otis | Aug 5, 2011 5:54:35 PM

Government criminal lawyers shouldn't expect six-figure salaries, or even those on the high-end of five-figure salaries. The trade-off in money is (usually) more free time, autonomy, better experience, and arguably more interesting work. But if you're the one county that is paying 40K, and the surrounding ones are paying 53K, you're setting yourself up to attract the less-qualified lawyers.

Posted by: Moron | Aug 5, 2011 6:42:09 PM

Bill, of course you and most prosecutors can go through a list of excuses. Prosecutors use those excuses to justify why the informant of the day is special and truly deserves their light sentence, unlike every other defendant in the courthouse.

(this is a good start to the Friday afternoon fight the Professor wants. I recommend a short response next, something like "at least prosecutors are real lawyers, unlike Public Pretenders." I would add a winking emoticon if I didn't think emoticons are stupid.)

Seriously, did you go straight into the DOJ Honors Program after law school and/or a clerkship? I do not mean this as an insult. Instead I think prosecutors who spend their entire career with the Feds do not appreciate how much more money the Feds have. A typical AUSA (or AFPD) makes quite a bit more money than any state prosecutor or state defender. Typical starting salary for a state public defender or prosecutor is $30,000 to $40,000; I think starting AUSA's easily make twice that. So while most lawyers on either side don't enter criminal law for the money, money still matters. The money is the biggest reason why the average federal prosecutor or federal defender is quite a bit better than their average state counterpart.

So funding matters, caseload matters and even the most dedicated defense lawyer in Alabama cannot properly defend a capital murder for $2,000

Posted by: Paul | Aug 5, 2011 7:10:53 PM

Paul -- I don't think anyone could argue that federal service isn't another world from state government. That said, my understanding is that FD salaries are tied to AUSA salaries. I'm three years out of law school, at a biglaw firm after two years of clerking. Although I make $170K, I recently realized that a friend in my law school class who went into DOJ Honors after a year of clerking already makes over $100K (GS-14). Given the relative stress, hours, and interesting-ness of our jobs, I'd far rather be in his shoes than mine.

Posted by: Jay | Aug 5, 2011 8:12:40 PM

As a fed prosecutor currently preparing for a trial, I can assure you that my preparation consists of much more than "what happened next." We rightly have to make sure that every T is crossed and every I is dotted. I'm loving every second of it, but it is tons of work because the judge and public rightly expect that we have our act together.

On average I work about 60 hours a week, and I make a decent wage. I don't do it for the money, but working for the feds makes it much more doable than working for the state. After my clerkship, I turned down an offer from the state b/c the salary was too low - in the low $40s. I worked at a small firm for a few years to get the trial experience I needed to apply to the USAO in the city I lived in. The quality of the federal defenders in my city are excellent. I know that they work hard as well, and their office is MUCH smaller than mine, though they do have attorneys from the local bar who take on many cases. I agree that prosecutors and defense attorneys should be paid equally. I think that it is a shame that state prosecutors/defenders get paid what they do. The good ones are hugely underpaid, and the salary unfortunately guarantees that there will be a lot of bad ones. It is similar to teachers being hugely underpaid. It makes no sense that people who are responsible for such important and life-changing issues are not paid what they are worth.

Posted by: domino | Aug 5, 2011 8:19:42 PM

Paul --

"Bill, of course you and most prosecutors can go through a list of excuses. Prosecutors use those excuses to justify why the informant of the day is special and truly deserves their light sentence, unlike every other defendant in the courthouse."

The myriad of excuses I listed are, so far as I ever saw, exclusively defense lawyer territory. The only "excuse" I ever heard a prosecutor make when urging a lighter sentence for a cooperating witness was that his information and willingness to testify were important to bringing others to book. No prosecutor I ever heard of mentioned PTSD or any of the rest of the inventory.

Cooperating witnesses (or informants, if you will) are of course unpopular with the defense bar -- except, that is, with the particular member of the defense bar who broke down the door with a tank to be the first one in to get for his client exactly the break his fellow defense lawyers ALSO eagerly sought but, having failed to obtain, now denounce as dirty pool.

Far out!

I won't go much into my background, since when I do I'm accused of "bragging," but I agree that the feds have more money and run a tighter and more professional operation than is usually available to their state counterparts, who are, I also agree, paid less. (For those interested, my background is easily available by Googling. For now, I'll just say that I'm a thoroughly obscure adjunct professor at Georgetown).

And yes, money counts, but not as much as people think. What actually counts is smarts and determination (experience doesn't hurt either). This is why I always laugh when people with little or no acquaintance with the system say PD's are no match for the private bar. It's precisely because PD's are passionate that they are, generally speaking, every bit a match for the private bar.

If a kid out of law school is looking to make the big bucks, criminal law is not the place to be. When you make that choice, it's a little like choosing to join the monestary. You'll almost surely like what you're doing, but the tradeoff is you'll live with all the luxuries of a monk.

Posted by: Bill Otis | Aug 5, 2011 8:32:37 PM

Jay, you are right that FPD salaries are tied to AUSA salaries. I believe this is true all over the country. Everything I said about the effects of federal money applies equally to both sides.

Domino didn't become an AUSA for the money, but he chose DOJ over his local DA's office at least partly for the money. Which I don't criticize him for. He sacrificed a great deal of money not going to a white shoe firm but even with all the dedication in the world he still needs to pay his kid's college tuition. I think Jay, Domino and I all agree the feds pay quite a bit better than their state equivalent on both sides, and as a result federal lawyers on both sides are generally better than their state equivalents. And having competent lawyers on both sides will generally produces more just outcomes. There is no way the states can pay as much as the feds, especially considering that federal case loads are quite a bit smaller than state case loads, but if the states increased salaries on both sides the quality of lawyer on both sides would increase. And if public defender salaries aren't linked to prosecutor salaries and there is a battle between them over a tight budget, well, the public defender loses that battle every time.

Bill, I can't tell if you think dedication by a public defender is a magic pill that will solve underfunding of public defense. It doesn't work that way. Even the most gifted and dedicated public defender cannot do an adequate job defending 400 felonies a year. An Alabama contract lawyer who spends 500 to 1,000 hours defending a capital murder for $2,000 will go bankrupt. So do you think that Alabama should pay more than $2,000 to defend a capital murder? If you answer this question with a yes or no I will admit that there is more to a prosecutor's job than asking "and then what happened" (if only because sometimes a prosecutor needs to add "agent").

Posted by: Paul | Aug 5, 2011 10:26:50 PM

Paul --

"So do you think that Alabama should pay more than $2,000 to defend a capital murder?"

You bet, as I have said before here several times.

I want to add a caution, though. Lawyers tend to overrate their own importance. Every now and again, outmanuevering the other side will win a case. But for by far the most part, the thing that wins cases is evidence. Contrary to the Great Urban Myth, defendants don't wind up in jail because their lawyer was drunk/asleep/corrupt. They wind up in jail because they're guilty and the government has the evidence to prove it.

Posted by: Bill Otis | Aug 5, 2011 10:58:08 PM


"They wind up in jail because they're guilty and the government has the evidence to prove it."

that might be true bill and as long as the state has gotten the evidence LEGALLY! go for it!

if on the other hand as we keep seeing over and over and over and over in far too many cases the govt ISN'T getting it legally! at that point i EXPECT them to be HAMMERED like ANY OTHER bunch of CROOKS!

Posted by: rodsmith | Aug 6, 2011 12:36:49 AM


1) These are lazy, coffee swilling, slackers. worthless government workers. They were in law school, and are again.

2) What they do is likely over-priced. They have developed defendant commodifying methodologies. Over a sandwich, they will clear 20 cases, with 5 minutes devoted to each, screw what the defendant or victim wants.

3) Both love the criminal, and will protect the criminal from any intimidation or consequence likely to reduce crime, such as public self-help. They prosecute public self-help, usually of productive males with money. Public self-help is the hallmark of zero crime areas, such as primitive African villages, small Midwest towns, lawyer residential areas. The prosecution has 90% of major crimes go unanswered. They are in utter failure protecting the public, which Job One and Job Last of government.

4) The jobs are training positions. You get to do 8 drunk driving cases every day. After 2 years, one has mastered the drunk driving laws. One may then go out in private practice and sell a defense package for $10,000, with lots of customers. Do 2 of those a day, and you have something. They are like medical residencies. One comes out of those schools knowing nothing about the handling of live cases.

5) They care more about each other than about the employer or about the defendant. The defense will never attack the prosecution personally, as is its duty. That is why pro se litigants do better than these clowns.

Posted by: Supremacy Claus | Aug 6, 2011 9:41:18 AM

My first job out of law school was as a misdemeanor prosecutor in Los Angeles. I had two jury trials a week and learned he craft of putting together a case. I saw the so-called underbelly of society: every conceivable misconduct came into court. Among other things, I came to understand what I would later would jokingly tell students: "if it's too much fun, no doubt it is a crime." What came to bother me after a while was the sentencing. Even though the worst sentence was only a year, watching the defendant go off in handcuffs after I made an argument, began to bother me. More importantly, though, I came to see that the public defenders seemed to have more fun at their parties. So, like many prosecutors, I switched sides. I became a federal public defender. I was right: the parties were much more fun. More importantly, I discovered that representing a person accused of crime gave me enormous personal satisfaction. The thought that I alone (and the presumption of innocence) stood between the accused and his fate was a high. I liked and still like the feeling. I also found (and still find) amazing and wonderful the fact that the government was paying me to defend persons that the government was prosecuting. So who else has a story to share?

Posted by: Michael R. Levine | Aug 6, 2011 11:38:12 AM

In my state, although there is a state public defender system, there is no link between prosecutor and public defender salaries and prosecutors almost always get more pay. I recently saw job postings for appellate jobs on both sides in my state and the prosecutorial side paid significantly more although the defenders usually initiate the appeal and have to write two briefs to the state's one as well as work with and advise a client.

Interestingly, the prosecutor offices also pay bar fees and, until very recently, were eligible for federal loan forgiveness benefits that were not extended to public defenders.

I am extremely disappointed in the quality of some of the comments on this issue. To paint with a broad brush about either type of lawyer is pointless. There are hard workers and lazy lawyers on all sides. There are wealthy jurisdictions with substantial resources and smaller caseloads and others where there really aren't adequate resources on any side.

As the criminal laws have gotten increasingly complex, the field demands increasing knowledge and specialization on both sides. Because 6th Amendment ineffective assistance of counsel claims provide some awareness of the duties and deficiencies of defense attorneys, we think more about their duties to advise and function. The best and more fair outcomes would result from highly trained and professional lawyers on both sides. That being said, having seen and advised numerous talented formerly career prosecutors leave their positions to become defense attorneys, I think they would all admit as a matter of personal stress and obligation, it is much harder to be a defense attorney, the responsibilities are endless, the deck is stacked, and the resources are always inadequate.

Posted by: LRK | Aug 6, 2011 12:17:29 PM

Perhaps when prosecutors salaries are reised, their numbers could be decreased to off set the expense. This should bring some balance to the equasion. The statement that salaries should be reised because attorneys can make more in the private sector needs some scrutiny. It is necessary to be something of a "rain maker", small or large.

Posted by: beth | Aug 6, 2011 4:20:12 PM

I agree. The comments here are crap.

First of all, a lot of places have DA-PD parity. Some state PDs pay over $100k, and can almost always recruit from the cream of clerkships/biglaw/whatever. It is a management decision as to whether to devote resources toward hiring more experienced lawyers and less office staff, or more lawyers with less experience, etc. Most PD managers, I've seen, prefer to hire lawyers with more experience, whereas green DAs prosecuting misdos are probably a good investment since 1) they will be learning; and 2) if they quit, the state won't have wasted a lot of cash.

Secondly, as to the actual work performed: most of the comments seem to have little relationship to the actual litigation problems faced by criminal defendants.

My proposal would not be to look at individual PD or DA salaries. But to look at whether or not an individual PD office has the resources to (and, in fact, does) keep the DAs in trial all the time, and appeals a certain percent of trial losses. The threat of experienced litigators who can try cases (without fear) is what will keep resolutions resasonable.

Posted by: S.cotus | Aug 8, 2011 2:39:57 AM

"But to look at whether or not an individual PD office has the resources to (and, in fact, does) keep the DAs in trial all the time, and appeals a certain percent of trial losses. The threat of experienced litigators who can try cases (without fear) is what will keep resolutions resasonable."

Not just crap, but rent seeking, self-dealing crap. The purpose of the criminal law is to protect the public. It is not to provide adequate lawyer employment or structured activities for the lawyers to keep busy.

Over 90% of Index felonies go unanswered by these lazy, sinecure sitting, worthless government workers. When they have the person, it is the wrong person much of time, perhaps, 20% of the time, an appalling failure on the other side of the failure coin. The result, 20 million Index felonies a year, 5 million being violent. Say, the racist lawyer does not care about black victims. Does he care that crime is likely dropping the value of real estate by as much as 40%? End crime today, we would all be 40% richer.

Posted by: Supremacy Claus | Aug 9, 2011 11:25:28 AM

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