Via Doug Berman, a new paper by Adam Gershowitz and Laura Killinger entitled The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants. contends that we should feel for prosecutors, overburdened and underfunded, for the sake of our clients.

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.

Initially, the reference to “dozens of scholars” having documented underfunding of indigent defense, rather than dozens of indigent defense organizations, bar associations, court cases or the wealth of other sources far more meaningful, knowledgeable, informational and relevant, starts this “counter-intuitive” argument off on the wrong foot.  When lawprofs rely on lawprofs rather than reality to support their theories, they proclaim their bias off the top, and suggest that they start out disconnected from, and disinterested in, reality.  So be it.

The argument recites a laundry list of things that prosecutors, given more time and resources, could do:

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. 

It’s certainly true that a prosecutor could do any or all of these things, if she only had the time.  She could also learn to paint, memorize bible passages or rehearse the Mamba.  Based upon my personal experience, it’s most likely that the prosecutor with more free time would take longer lunches and pick better players for the office fantasy football league.

Regardless of the length of time available to prosecutors to ponder, consider and deliberate over their cases, it remains the responsibility of the defense lawyer to bring issues that mitigate in favor of the defendant to the prosecutor’s attention.  Yet again, lawprofs seem to forget that it’s not entirely in the hands of the prosecution to manage the criminal justice system. 

Of course, this paper would appear to assume that the only player on the defense side is the indigent defender, since there is no other conceivable way that the burdens of prosecutor and public defender could have the same caseload.  The numbers just don’t work unless you assume that every defendant is represented by the PD.  Perhaps this reflects the assumption that the overburdened public defender does absolutely nothing on behalf of his client, or perhaps the authors put all stock in the prosecutors, as the indigent defenders are too inconsequential to merit a role in the system.

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. 

Of the issues raised that reflect a fundamental disconnection from reality, this stands out.  First, the authors are apparently unfamiliar with speedy trial requirements, meaning that the prosecution suffers “enormous delays” to the defendant’s benefit.  Delay long enough and the defendant walks.  It’s not always a bad thing to have delays.

As for those at the bottom of the food chain, unable to make minimal bail on a low level offense, delay isn’t an unfortunate by-product, but part of the design scheme for coercing pleas.  Prosecutors don’t want to move the case along faster, but use the delay, coupled with a plea that will release the defendant immediately, to get the quick and easy guilty plea.  Did the authors seriously think otherwise?  It’s not an accident that a person in jail for inability to post bail gets an offer of time served.  And if time served is appropriate to cover the offense, then there’s a bit of a gap in the need to keep the defendant incarcerated pending trial, eh?

Omitted from this concern over the poor, overburdened prosecutor, is the fact that prosecutors have far more control over their caseload than does the defense.  Want more time to ponder the potentially innocent defendant?  No problem. Move for lower bail, or even release, and take all the time you want.  Want to move cases along more quickly?  Offer lower pleas and many defendants will be happy to oblige.  Concerned about dubious, low-level busts?  Toss ’em.  Whatever flavor your jurisdiction provides, whether an adjournment in contemplation of dismissal, conditional discharge, you name it.  Every jurisdiction offers options, left to the discretion of the prosecutor, to reduce the caseload quickly and easily.

Every problem purportedly on the prosecutor’s shoulders, as identified by Adam Gershowitz and Laura Killinger as being something prosecutors could do, could be done today regardless of the caseload.  They simply chose not to.  And if they had lighter caseloads, they still wouldn’t do them any more or less than they do otherwise.  They would, however, enjoy a leisurely lunch.  Who wouldn’t?