« Noticing Gov Newsom's not-so-progressive approach to parole so far | Main | After state jury recommended 419 years plus life, feds allow Charlottesville killer to plead guilty to take capital charge off table »

March 27, 2019

"Regulating Mass Prosecution"

The title of this post is the title of this new paper authored by Irene Joe now available via SSRN. Here is its abstract:

Efforts to address our nation’s criminal justice crisis have hit a standstill; legislative solutions have proven inadequate and increased funding for public defenders is politically impractical.  Virtually everyone agrees that there is a problem: we incarcerate more people than any other developed nation and that imposes a significant cost on society.  The conventional solutions to this crisis focus on the legislative or public defense side of the equation — urging decriminalization of certain behaviors by state legislatures and increased funding for indigent defenders.  These proposed solutions are important but, alone, insufficient, for reasons that are all too predictable: a lack of political will to do right by indigent defendants.

In this paper, I advance a solution that is at the same time novel and achievable.  My proposed solution is novel because it focuses on an institutional actor that has, to this point, received comparatively little attention in the debates over mass incarceration — the prosecutor.  It is achievable because it does not require new legislation that would, in turn, depend upon political support that is unlikely to materialize. Instead, the solution is already a part of our legal backdrop: prosecutors should be required to comply with the same ethical rules that govern all other lawyers.  And those rules, I argue, are violated when prosecutors exercise their charging discretion in ways that contribute to massive public defender caseloads.

Prosecutorial discretion allows the prosecutor, with few limitations, to choose which of many potential criminal charges she will pursue.  This means that prosecutorial discretion gives prosecutors a degree of control over the size and scope of the criminal court docket that other criminal court actors do not possess.  If we seek a solution to our nation’s problem of mass incarceration, then we must recognize that public defenders with massive caseloads compromise that goal.  This Article conveys that public defender overload, and the mass incarceration to which it contributes, is not simply a constitutional crisis limited to individual rights for individual defendants.  Instead, it defines the problem as an ethical one, with central concerns about how the legal profession is situated in the criminal justice domain.

March 27, 2019 at 02:46 PM | Permalink


“My proposed solution is novel because it focuses on an institutional actor that has, to this point, received comparatively little attention in the debates over mass incarceration — the prosecutor“

This is plainly untrue in academic circles. Perhaps with the fudge word of comparatively, she has an argument to defend the statement, but frankly there is a large amount of scholarship in this area. It is not implemented because the academic world is largely removed from the reality of criminal justice.

The California Legislature is as receptive audience as one will find in the United States for these issues. Few to none of these initiatives are gaining any traction here. Why is that? Because most of these policy proposals are rooted in grave misunderstandings, or written without any knowledge as to their externalities.

Posted by: David | Mar 29, 2019 10:15:50 AM

The solution proposed is absurd. The author proposes to require prosecutors to seek alternate crime reduction strategies IF the public defender caseloads become excessive. The author proposes that the state bar, unelected and not accountable to the voters, have regulatory authority over this issue. I’m sorry, but this is not academic inquiry, it is foolishness. It starts from the tired trope that public defenders offices are woefully underfunded. That may be true some places, but that is simply not true in the backyard in which the professor operates (UC Davis).

Regardless, what would stop public defenders from intentionally under staffing in order to achieve the goal of fewer prosecutions (which is Professor Joe’s goal as well). A review of many public defender budgets reveals that they already have lawyers who are not defending current cases. In my county, the PD’s office is funding community outreach. Also, they have assigned lawyers to long final cases were the inmate already has lawyer assigned by the state in the prison system because they don’t like those lawyers and don’t think they do a very good job. Because these PD’s are doing these things they are not representing defendants in current cases, thus raising caseloads for the others.

Instead of writing 65 single spaced journal articles about ideas that will never be implemented, I suggest Professor Joe help reduce those caseloads. Dust off her trial skills and get back into the courtroom on a case or two. The PD will be appreciative and apparently she has the free time.

Posted by: David | Mar 30, 2019 9:48:36 AM

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