The past couple of weeks, there’s been some discussion about a recent paper by Adam Gershowitz and Laura Killinger called “The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants”.
The authors argue that prosecutors in large jurisdictions often have “excessive” caseloads, so they don’t have enough time and resources to devote to each case. And injustice results. Rushed and overwhelmed, they fail to spot cases deserving special treatment, such as more lenient pleas or drug-court diversion. They don’t notice Brady evidence favorable to the defense. Weak cases don’t get dismissed. Jammed up caseloads cause delays that make defendants take pleas to time served, just to get out of jail. Nobody has the time to spot innocent people, who wind up getting convicted in the rush.
One of the better posts was by Scott Greenfield yesterday at his blog Simple Justice, where he makes the point that delay is actually a good thing for the defense, thanks to speedy-trial rules. More importantly, he points out that prosecutors actually have the discretion to do what it takes to make their caseloads more manageable. To get rid of cases, they can offer lower pleas, dismiss them, do an ACD/DP, what have you. There are easy options to put a case on hold while investigating whether a defendant is deserving of special treatment.
But we haven’t seen anyone yet make the blazingly obvious point that prosecutors aren’t likely to do any of that if the defense attorney doesn’t bring it up, first.
So we’re going to say it now. We defense attorneys can’t just sit there and hope that the prosecutor does the right thing. We actually have to get off our butts and make a case. Good defense lawyers know this, and much of their advocacy involves convincing the prosecutors to exercise their discretion in the client’s favor. Even the best prosecutor only knows what’s in front of him. He’s made up his mind about what this case is worth, based on the evidence he has. The only way to get him to change his mind is to give him new facts, or a new way to look at the facts.
So if a client might be innocent, and the prosecutor doesn’t realize it, then the defense attorney’s job is to bust his ass to make sure the prosecutor figures it out. Ditto for clients who really deserve a lighter-than-usual sentence, or a creative sentence, or treatment instead of jail. This has nothing to do with prosecutor caseloads, and everything to do with defense counsel. Sorry, but it’s the truth.
Beyond that, we still don’t see much cause-and-effect between prosecutor caseloads and the problems decried by the paper’s authors. That’s just not the problem here. And lowering caseloads or increasing resources won’t fix the real problems.
The best prosecutors do try to screen out the innocent, the weak cases, the special cases. Oddly enough, they are pretty common in some offices with the heaviest caseloads. The worst prosecutors don’t seem to want to exercise their discretion at all, or even recognize that they have been given it for a reason. And they’re common enough in offices with hardly any caseload to speak of. In our experience, prosecutor caseloads have zero effect here. The quality of the individual prosecutor, and the culture of their office, has everything to do with it.
So the trick is to get better, not more, prosecutors. How do you do that?
You don’t really need to pay them more. It’s a government job, so it pays shit. But a good office offers more than pay. It offers prestige. Look at the Manhattan DA’s office, and compare that to its suburban neighbor in Nassau County. Former Manhattan assistants have tremendous prestige, from working in one of the most highly-regarded offices in the country, known for its culture of good judgment and seeking justice above all else, and also known for the best they can get. It’s long been one of the hardest jobs for a lawyer to get, so many highly-qualified grads and laterals want in. And they easily have some of the highest caseloads in the country. Nassau County, on the other hand, has a pretty low caseload, and its office has a reputation for being harsh and inflexible, where assistants are given little or no individual discretion, and those who would exercise their discretion are purged. Oddly enough, it’s not high on the list of where the best and the brightest want to start their careers.
The best prosecutors offices, from the defense point of view (the only view that really counts, if you think about it), are those where individual prosecutors are allowed to use the great discretion that the law has given them. They’ve been given this discretion for a reason: to ensure individual justice. Nobody else in the system has this power to craft the right outcome, no matter what punishment the law might have required. The law is not flexible, and bright lines create injustice. We know this, and that’s why prosecutors are allowed to make plea bargains, dismiss cases, and come up with creative dispositions in the interests of justice.
Naturally, those best offices also hire people who have the judgment and maturity to handle that great discretion. And they weed out those who can’t hack it. Supervisors are there, not to impose decisions from above, but to guide their assistants to the best decision.
It’s not hard to do, and a good culture becomes a self-fulfilling prophecy. The right culture, after a few years, begets a good reputation, attracting the good lawyers. They’ll work there for a lot less money, for a few years at least, getting the experience and prestige they can take back into the private sector. And when they leave, there will be plenty of good lawyers begging to take their place.
So that’s the macro solution. Don’t change the caseloads, change the culture.
And regardless of what kind of office you’re dealing with, the defense attorney has to be the one advocating for the just outcome. We have the burden of showing the prosecution that the facts are different, or that there’s a better way to look at the facts, to convince them to use their discretion in our client’s favor.