Panel discusses uncontested district attorney elections and prosecutor politics

​Nationwide, 95% of incumbent district attorneys win reelection, and few even face an opponent. The bigger the district, the more money is generally spent on elections, and reform candidates bring in more money, including from out of state, says a researcher.

But according to some district attorneys, political party affiliation plays little to no role in performance of their jobs.

A national researcher and three current or former district attorneys spoke on a panel at the Marquette University Law School on Tuesday about how politics and prosecutors intersect. Marquette Law professor Michael O’Hear moderated.

Professor Carissa Byrne Hessick began the event describing research she and others are doing in the Prosecutors and Politics Project at the University of North Carolina School of Law. The project’s members gather data, analyze trends, and publish findings — and even op-eds — regarding prosecutors. Hessick is the project’s director.

After Hessick presented some of the project’s findings, Milwaukee County District Attorney John Chisholm, Marathon County District Attorney Theresa Wetzsteon, and former Winnebago County District Attorney Christian Gossett responded with their reactions and a discussion of issues facing prosecutors in Wisconsin.

From left to right: O'Hear, Wetzsteon, Gossett, Chisholm, and Hessick

Hessick indicated that more than 2300 district attorneys are elected across the country, with 45 states electing their local prosecutors for terms of between two and eight years. Within the election states, only five have nonpartisan district attorney offices, she said.  

Hessick and her fellow researches studied data on all 2016 prosecutor races across the country. The project has not yet analyzed 2020 election data.

The researchers found that 95% of all incumbent elected prosecutors won their 2016 reelection campaigns. That percentage confirmed the finding of another researcher’s smaller study a decade earlier, she said.

Both nationally and in Wisconsin, only 30% of prosecutors faced an opponent in either the primary or general election. The larger the district, the more likely an election was contested, the project found.

Even most open seats are uncontested, she said.

The project found that size of a district also corresponds to the amount of money spent on campaigns. With one aberration regarding Jefferson County District Attorney Susan Happ, the general rule applied in Wisconsin, with the most expensive races in Milwaukee, Dane, and Racine counties in that order, Hessick said. (The district attorneys on the panel suggested that Happ’s campaign numbers may have included money from her previous race for attorney general.)

Hessick noted that the project looked only at money raised by candidates themselves, not at “dark money” coming into the race from outside sources. Information on outside funding is too difficult to acquire, she said.

Hessick relayed the project’s additional research on prosecutors lobbying for legislation. The project looked at every criminal justice bill across the country from 2015 to 2017 to see who was lobbying for or against it.

The researchers found that prosecutors generally are more likely to see success in getting bills they support passed than in blocking bills they oppose, she said. Prosecutors were also found more successful in arguing for criminal justice reforms rather than for harsher legislation, she said.

Regarding legislation in Wisconsin, the project saw more written testimony or lobbying from the state attorney general’s office than from the district attorneys’ association.

The Wisconsin District Attorneys Association is a voluntary association of criminal prosecutors from across the state.

Milwaukee County District Attorney John Chisholm explained that the prosecutors’ association primarily advocates for more staff and funding rather than for criminal law changes.

Compensation for district attorneys and their staff was a significant topic for the DAs on the panel.

Gossett and Chisholm noted how rules regarding DA pay have restricted compensation such that many city attorneys now make $30,000 more than their county's DA.

Even staff below the DAs can earn more. Gossett said he resigned his DA position and took the Deputy DA spot, thereby getting an immediate raise of $17,000. He indicated that 40 of 71 DAs would get a pay raise by stepping down, and nine have done so this year.

The pay rate and, for small counties, a lack of attorneys interested in the job could explain the dearth of contested elections. Wetzsteon described how in recent elections too few people showed interest in running for Marathon County judge; candidates had to be recruited.

Gossett and Wetzsteon pointed out how DA positions differ between large and smaller counties. Gossett noted that out of 71 DA offices across the state only four have more than 20 prosecutors.

In smaller counties, like Marathon and even Winnebago, the DA is a “working” DA still prosecuting cases in court, Wetzsteon and Gossett said.

In those counties, partisanship gets blown out of proportion and the DAs are just trying to run their offices to get the job done and keep the community safe, Gossett said. He indicated that he was a Republican DA, and Tony Evers appointed his replacement, but the office runs the same.

Regarding Hessick’s research on prosecutors influencing legislation, Wetzsteon indicated that records regarding lobbying on bills would not reflect times when legislators contacts DAs for advice about how certain proposed legislation would work. The DAs can be approached as experts and influence legislation that way, even if they do not seek out bills to weigh in on, she suggested.

When O’Hear asked what qualifications a prosecutor should have, Wetzsteon replied that for smaller counties, the DA must be able to actually try cases in court. Political parties looking for candidates may not take that into account, she had indicated earlier.

She added that prosecutors need to be able to make good decisions quickly and “need to know [their] stuff” when called in the middle of the night about a search warrant.

Chisholm had earlier referred to a managerial aspect of the DA job, indicating that during 16 years as DA he has hired 225 prosecutors. Gossett later echoed how the DA position is one of constant training.  

When hiring prosecutors, Chisholm looks for good people who “want to do justice.” Gossett said he looks for humility, as the job is to help solve problems and be a part of the community.

Chisholm added that DAs have to both protect the people who work for them and be transparent when “something goes sideways.” He noted the tremendous pressure on DAs “to do the right thing” rather than be political at those times.