« Maryland legislature moving forward on branding sex offender drivers' licenses | Main | A (record?) 30-years on death row for Nevada killer »

April 10, 2010

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

The title of this post is the title of this interesting-looking new piece on SSRN from Adam Gershowitz and Laura Killinger. Here is the abstract:

Although dozens of scholars have documented the appalling underfunding of indigent defense in the United States, virtually no attention has been paid to the overburdening of prosecutors. In many large jurisdictions, prosecutors handle caseloads that are as large as those handled by public defenders. Counter-intuitively, when prosecutors shoulder excessive caseloads, it is criminal defendants who are harmed.

Because overburdened prosecutors do not have sufficient time and resources for their cases, they fail to identify less culpable defendants who are deserving of more lenient plea bargains. Prosecutors also lack the time to determine which defendants should be transferred to specialty drug courts where they have a better chance at rehabilitation.  Overwhelmed prosecutors commit inadvertent (though still unconstitutional) misconduct by failing to identify and disclose favorable evidence that defendants are legally entitled to receive.  And excessive prosecutorial caseloads lead to the conviction of innocent defendants because enormous trial delays encourage defendants to plead guilty in exchange for sentences of time-served and an immediate release from jail.  This article documents the excessive caseloads of prosecutors’ offices around the country, and it demonstrates how the overburdening of prosecutors harms criminal defendants, victims, and the public at large.

April 10, 2010 at 03:18 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e201347fc858ca970c

Listed below are links to weblogs that reference "The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants":

Comments

maybe their caseloads woudn't be so overwhelming if they would stop making EVERYTHING a crime and stop trying large numbers of defendents OVER AND OVER AND OVER AND OVER.....

Posted by: rodsmith | Apr 10, 2010 5:53:13 PM

rodsmith: The people, through their legislature, decide what acts are criminal. Prosecutors enforce the laws. Defendants can avoid prosecution by not committing new crimes.

Hard to believe this has to be iterated on this web site.

Posted by: mjs | Apr 10, 2010 8:00:50 PM

This is an excellent review, and it brings up a new appellate argument. Everyone knows about the inadequate defense argument. This article is the basis for the inadequate prosecution argument. Does the prosecution have a duty to the defendant. You bet, it has dozens of duties, statutorily enumerated in the Rules of Conduct, the Rules of Evidence, the Rules of Criminal Procedure, and now in the case law reviewed in the article.

It would be a good student exercise to list the duties of the prosecutor to provide an adequate prosecution to the defendant. This would not be make work, but rather a checklist upon which to base a long series of complaints. The enumeration of these duties should make any claim of negligence against the prosecutor, a per se claim, meaning, causation need not be proven, just that a harm took place, and the liability is automatic. This is a further argument in favor of ending all prosecutorial immunities and discretions. Even if the person is individually competent, the caseload makes all of them incompetents.

Posted by: Supremacy Claus | Apr 10, 2010 8:40:48 PM

mjs --

All these years and you still don't get it. So here it is in a nutshell: Everything is the fault of The System, nothing is the fault of the defendant. And if anything WERE the fault of the defendant, it would only be because he was abused by poor schooling, his wicked step-mother, or excess twinkie consumption.

Where's your compassion?

Sincerely,

Lynne Stewart

Posted by: Bill Otis | Apr 10, 2010 11:25:12 PM

rodsmith: The people, through their legislature, decide what acts are criminal. Prosecutors enforce the laws. Defendants can avoid prosecution by not committing new crimes.

Hard to believe this has to be iterated on this web site.

Posted by: mjs | Apr 10, 2010 8:00:50 PM

This is outright false if not an outright lie.

Since a violation of Penal Code section 288, subdivision (a) (nonforcible lewd acts) 2 is one of the enumerated offenses that may qualify as a predicate offense under section 6600, proof of the elements of the offense or evidence contained solely within the “record of conviction” may be insufficient to establish the offense qualifies as a sexually violent offense or that the offense involved substantial sexual conduct. Unlike a section 288(b) offense (forcible lewd acts), force and duress are not required elements of a section 288(a) offense. Substantial sexual conduct also is not required.

FOOTNOTES

2 Hereinafter we refer to this offense as a section 288(a) offense; and to a Penal Code section 288, subdivision (b) offense (forcible lewd acts) as a section 288(b) offense.


Therefore, evidence outside the record, such as witness testimony, may be necessary in establishing that a section 288(a) offense qualifies as a sexually violent offense. Otherwise a section 288(a) offense would never qualify when the defendant pled guilty or no contest prior to the preliminary hearing, and often would not qualify even if evidence was limited to the elements or record of conviction of a section 288(a) offense. (Otto, supra, 26 Cal.4th at p. 212; Whitney, supra, 129 Cal.App.4th at pp. 1295–1296.)

People v. Fulcher, 136 Cal. App. 4th 41.

No NEW offense is required and the government is free to find the defendant guilty (again, and of crime not pled to) based on hearsay and other evidence because civil commitment is not punishment.

The government twists itself around like a pretzel. "The System" is worthy of contempt because there really is no limit to which people convicted of which crimes this could apply to in the future. It sets an unbelievably subversive precedent. Hard to believe this has to be iterated on this web site.

Posted by: Someone | Apr 11, 2010 2:25:13 AM

Can we just say that someone has a point?

Posted by: beth | Apr 11, 2010 8:27:13 AM

If the concern is providing an extra measure of fairness for citizens accused of crimes, better to channel any additional resources to lawyers representing the accused.

And not just indigent defendants but the many who typically have difficulty coming up with the tens or hundreds of thousands of dollars needed to dispute criminal charges.

Giving prosecutors even more resources in the hope they’ll look out for defendants’ interests fails the laugh test.

From what I’ve seen (more federal than state), prosecution “teams” seem to operate in macho, arm-punching cultures in which nobody wants to be the guy who asks, “Hey, did this defendant really do anything wrong?”

Their focus is riveted on convictions.

Prosecutors already enjoy enormous advantages: back-breaking leverage afforded by harsh MMs and sentencing guidelines, broad sweeping statutes crafted to secure easy convictions, government-friendly rules of evidence, the leeway to purchase with liberty favorable testimony from snitches, virtually unlimited financial resources and so forth.

Given all that, the government doesn’t seem to be the side that needs more help…even if they could be trusted to use it as the authors of the study might hope they would.

Posted by: John K | Apr 11, 2010 3:06:39 PM

mjs -- "The people, through their legislature, decide what acts are criminal. Prosecutors enforce the laws. Defendants can avoid prosecution by not committing new crimes. Hard to believe this has to be iterated on this web site."

That's the textbook pablum. Here's what I see: Legislators demagogue and overcriminalize social and economic conduct to curry favor with gullible voters.

Prosecutors CHOOSE the cases they pursue, sometimes with an eye on the publicity and subsequent career advantages their choices might entail.

Hard to believe this has to be iterated on this web site.

Posted by: John K | Apr 11, 2010 3:30:03 PM

Ending all prosecutorial immunities and discretions would solve this problem. In a legal malpractice claim the victim of prosecutorial misconduct could have an expert testify, the caseload is impossible to carry competently.

Ending all immunities is a good idea because these are incompetents needing to be deterred. These are lazy. worthless government slackers mostly trying to get their names in the paper. They go after a kid peeing on a wall, while illegal alien, para-military gangs behead anyone who disrespects them. They also coddle criminals, owing their salaries to the criminals' acting up.

Lastly if liability is a substitute for violence, then the obverse is also true. Immunity provides a full moral, intellectual justification for violence.

Posted by: Supremacy Claus | Apr 11, 2010 3:45:20 PM

John K pretty much sum med it up with this.
Prosecutors already enjoy enormous advantages: back-breaking leverage afforded by harsh MMs and sentencing guidelines, broad sweeping statutes crafted to secure easy convictions, government-friendly rules of evidence, the leeway to purchase with liberty favorable testimony from snitches, virtually unlimited financial resources and so forth.

Mother Teressa couldn't slide past with how broad the statues are....95% plead guilty then get hammered..The prosecutor pounds it, the judge paints it....Federal System. is a tag team.

Posted by: Goodyr | Apr 12, 2010 2:27:46 PM

Doug, I really hoped for more on this blog on this issue. For one, most criminal convictions are not felonies. Most of them do not have "harsh" mandatory minimums (or even mandatory minimums at all). Many prosecutor's offices are, in fact, suffering from 1) low pay; and 2) poor morale. (As a practical matter, I will be damned if I list the jurisdictions that I know of where the defense bar has a distinct advantage over the prosecution -- but there are many such places.)

Now, people will always debate as to the “root” causes of crime. Some might say it is poverty, but then again, it is hard to feel sorry for the kind of people that don’t go to college or call the police more than once every two years. Some might say that it is a lack of things for prosecutors do to: but then again, they are only enforcing a social order that benefits us all? Some might say that it is individuals making choices: but then again, it probably is a good thing that we treat people differently based on their income: do we really want to send rich kids to jail for experimental drug use? Or what about straight couples or swingers in Virginia that have oral sex (which is a still a crime committed by many people in the Federalist Society)?

Posted by: s.cotus | Apr 13, 2010 11:22:43 AM

s.cotus --

You start out with this: "Doug, I really hoped for more on this blog on this issue." You end up with this: "...what about straight couples or swingers in Virginia that have oral sex (which is a still a crime committed by many people in the Federalist Society)?"

You seem to have intimate knowledge about people you don't know and have never met. Let's see how far that goes: Could you tell us whether members of the Constitution Society ALSO have oral sex? Or maybe Amnesty International?

Please! Inquiring minds want to know!

Uh............wait..............check that. They actually DON'T want to know. It's just that sometimes, s.cotus, you're irresistable.

Posted by: Bill Otis | Apr 13, 2010 6:22:34 PM

Bill, Sorry. I don't really like members of ACS.

Of course I know lots of Fed Soc members. In fact, I go to their panel discussions (sometimes leaving when their idle chatter annoys me). I have been invited to their homes, and offered jobs by them. (Pay wasn't too good.)

But, the fact remains, most members of the Federalist Society I know in Virginia did not renounce oral sex when asked, and, in fact, many bragged about committing this crime. So, join with me in turning in Virginians who commit this crime. We could split the cost of a hotline.

Posted by: s.cotus | Apr 14, 2010 12:02:02 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB