The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants

INTRODUCTION In recent decades, legal scholars have devoted enormous attention to two problems in the American criminal justice system: the appalling underfunding of indigent defense1 and intentional prosecutorial misconduct.2 Both problems are deeply troubling, and the academic literature helpfully serves to spotlight the problems and encourage reform.3 Remarkably, however, there is virtually no scholarship focusing on the opposite side of the coin. Scholars have failed to notice that prosecutors in large counties are often as overburdened as public defenders and appointed counsel.4 In some jurisdictions, individual prosecutors handle more than one thousand felony cases per year.5 Prosecutors often have hundreds of open felony cases at a time6 and multiple murder, robbery, and sexual assault cases set for trial on any given day.7 Prosecutors in many large cities have caseloads far in excess of the recommended guidelines that scholars often cite to criticize the caseloads of public defenders.8 Quite simply, many prosecutors are asked to commit malpractice on a daily basis by handling far more cases than any lawyer can competently manage. Not only have scholars neglected to analyze excessive prosecutorial caseloads, they have also failed to consider how those caseloads result in inadvertent prosecutorial error. While there is an enormous (and important) literature analyzing intentional prosecutorial misconduct, the reality is that most prosecutorial misconduct is accidental.9 While some of these cases involve unscrupulous prosecutors,10 far more often the errors are inadvertent because prosecutors are too busy to properly focus on their cases or because they have not received proper guidance from senior lawyers who are terribly overburdened themselves.11 The ramifications of excessive prosecutorial caseloads extend throughout the criminal justice system and, perhaps surprisingly, are most harmful to criminal defendants. Excessive caseloads lead to long backlogs in court settings, including trials, and bottom-line plea bargain offers. Defendants who have been unable to post bail thus remain incarcerated for months because overburdened prosecutors do not have time to focus on their cases.12 Jails accordingly remain overcrowded,13 resulting in not only great expense to taxpayers but also terrible conditions of confinement for defendants who are awaiting trial.14 Worse yet, excessive prosecutorial caseloads delay trials for months or even years, leading some defendants who would have exercised their trial rights to simply plead guilty and accept a sentence of time served.15 Some innocent defendants plead guilty to crimes they have not committed simply to get out of jail.16 Because they are overburdened, prosecutors-who are sworn to achieve justice, not to win at all costs17-lack the time and resources to carefully assess which defendants are most deserving of punishment. In rare cases, this means prosecutors will be unable to separate the innocent from the guilty. In far more cases, overburdened prosecutors will be unable to distinguish the most culpable defendants from those who committed the crimes but are not deserving of harsh punishment. For example, when a defendant is charged with robbery, prosecutors with time to look into the case might discover that, although the defendant was present at the crime scene, he was a small-time player tagging along with more serious criminals. Or prosecutors might learn that a defendant charged with theft had a very low IQ or that he stole to support his family rather than for more illicit purposes. In those cases, prosecutors who have time to dig into cases may be willing to plea bargain to lower charges or sentences. This is particularly important when, as too often is the case, the indigent defendant is represented by an overburdened defense lawyer who did not conduct any investigation or who lacked the time to bring the relevant information to the prosecutor's attention. …