The state (never) rests: How excessive prosecutorial caseloads harm criminal defendants

Northwestern University Law Review

Volumn 105, Issue 1, 2011, Pages 261-302

  Gershowitz, Adam M ^a   Killinger, Laura R ^b  

^a UNIVERSITY OF HOUSTON   (United States)

^b Harris County District Attorney's Office   (United States)

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EID: 79959218102     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (243)

1. For a sampling of the dozens of excellent articles.
2. see Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, a National Crisis, 57 HASTINGS L.J. 1031 (2006).
3. Stephen B. Bright, Neither Equal nor Just: The Rationing and Denial of Legal Services to the Poor when Life and Liberty Are at Stake, 1997 N.Y.U. ANN. SURV. AM. L. 783.
4. Dennis E. Curtis & Judith Resnik, Grieving Criminal Defense Lawyers, 70 FORDHAM L. REV. 1615 (2002).
5. Cara H. Drinan, The Third Generation of Indigent Defense Litigation, 33 N.Y.U. REV. L. & SOC. CHANGE 427 (2009).
6. Erica J. Hashimoto, The Price of Misdemeanor Representation, 49 WM. & MARY L. REV. 461 (2007).
7. Norman Lefstein, In Search of Gideon's Promise: Lessons from England and the Need for Federal Help, 55 HASTINGS L.J. 835 (2004).
8. Douglas W. Vick, Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences, 43 BUFF. L. REV. 329 (1995).
9. Ronald F. Wright, Parity of Resources for Defense Counsel and the Reach of Public Choice Theory, 90 IOWA L. REV. 219 (2004).
10. Ronald F. Wright & Wayne A. Logan, The Political Economy of Application Fees for Indigent Criminal Defense, 47 WM. & MARY L. REV. 2045 (2006).
11. Kyung M. Lee, Comment, Reinventing Gideon v. Wainwright: Holistic Defenders, Indigent Defendants, and the Right to Counsel, 31 AM. J. CRIM. L. 367 (2004).
12. Effectively Ineffective: The Failure of Courts to Address Underfunded Indigent Defense Systems, 118 HARV. L. REV. 1731 (2005).
13. Gideon's Promise Unfulfilled: The Need for Litigated Reform of Indigent Defense, 113 HARV. L. REV. 2062 (2000).
14. See, e.g., Gershman, Trial Error And Misconduct (1997).
15. Joseph F. Lawless, Prosecutorial Misconduct (3d ed. 2003).
16. Angela J. Davis, The American Prosecutor: Independence, Power, and the Threat of Tyranny, 86 IOWA L. REV. 393 (2001).
17. Alexandra White Dunahoe, Revisiting the Cost-Benefit Calculus of the Misbehaving Prosecutor: Deterrence Economics and Transitory Prosecutors, 61 N.Y.U. ANN. SURV. AM. L. 45 (2005).
18. Peter J. Henning, Prosecutorial Misconduct and Constitutional Remedies, 77 WASH. U. L.Q. 713 (1999).
19. Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. REV. 693 (1987).
20. Kelly Gier, Prosecuting Injustice: Consequences of Misconduct, 33 AM. J. CRIM. L. 191 (2006).
21. Carissa Hessick, Prosecutorial Subornation of Perjury: Is the Fair Justice Agency the Solution We Have Been Looking For?, 47 S.D. L. REV. 255 (2002).
22. Lyn M. Morton, Seeking the Elusive Remedy for Prosecutorial Misconduct: Suppression, Dismissal, or Discipline?, 7 GEO. J. LEGAL ETHICS 1083 (1994).
23. We do not criticize the attention paid to the underfunding of indigent defense and prosecutorial misconduct, and one of us has contributed to the literature on both topics.
24. See Adam M. Gershowitz, Prosecutorial Shaming: Naming Attorneys to Reduce Prosecutorial Misconduct, 42 U.C. DAVIS L. REV. 1059 (2009) [hereinafter Gershowitz, Prosecutorial Shaming].
25. Adam M. Gershowitz, Raise the Proof: A Default Rule for Indigent Defense, 40 CONN. L. REV. 85 (2007) [hereinafter Gershowitz, Raise the Proof].
26. A few scholars have made passing references to extreme docket pressure[s] but have not provided any detailed analysis.
27. See, e.g., Daniel C. Richman & William J. Stuntz, Al Capone's Revenge: An Essay on the Political Economy of Pretextual Prosecution, 105 COLUM. L. REV. 583, 601 (2005) (Extreme docket pressure characterizes DAs' offices, particularly in the large cities where crime rates tend to be highest.).
28. See infra notes 43-53 and accompanying text.
29. See infra notes 43-53 and accompanying text.
30. See infra Part I.B. (discussing the number of cases handled by many prosecutors). Given that there are fewer than 250 weekdays per year on which cases can be tried, it is clear that, in many instances, multiple cases must be set for trial on any given day.
31. See infra notes 26-30 and accompanying text.
32. See Gershowitz, Prosecutorial Shaming, supra note 3, at 1061-1062.
33. See, e.g., Banks v. Dretke, 540 U.S. 668, 674-676 (2004) (reversing a death sentence because the prosecutor deliberately withheld that a key witness had been paid and failed to inform the court that other witnesses had testified untruthfully).
34. See Geoffrey S. Corn & Adam M. Gershowitz, Imputed Liability for Supervising Prosecutors: Applying the Military Doctrine of Command Responsibility to Reduce Prosecutorial Misconduct, 14 BERKELEY J. CRIM. L. 395, 401-404 (2009).
35. See, e.g., Lise Olsen, Thousands Languishing in Cramped County Jails, HOUS. CHRON., Aug. 23, 2009, at A1 (finding that 200 currently incarcerated inmates in the Harris County jail had already served the minimum jail sentence for the crimes with which they were charged).
36. See, e.g., McVicker & Anita Hassan, Cruel and Unusual Punishment for Inmates?: Over the Past Six Years, at Least 101 Inmates Have Died at the Harris County Jail, HOUS. CHRON., Feb. 22, 2007, at A1.
37. cf. Steve McVicker, Sheriff Appealing Order, Won't Transfer Inmates, HOUS. CHRON., May 6, 2006, at B1 (State inspectors have withheld certification from the downtown [Harris] [C]ounty jail system for the past three years, largely because of inmate crowding.
38. See, e.g., Coleman V. Schwarzenegger, No. CIV S-90-0520 LKK JFM P, 2009 WL 2430820, at 80-81 (E.D. Cal. Aug. 4, 2009) (detailing how the California prison system is operating at twice its capacity and how it imperils inmates through terrible medical care and inmate-on-inmate violence).
39. See Josh Bowers, Punishing the Innocent, 156 U. PA. L. REV. 1117-1136 (2008) (The trial course is long; even if convicted, the defendant often has already served any postconviction sentence, and then some. In this way, conviction may counterintuitively inaugurate freedom. (footnote omitted)).
40. See Daniel Givelber, Lost Innocence: Speculation and Data About the Acquitted, 42 AM. CRIM. L. REV. 1167-1199 (2004) (noting that time-served plea offers may be too good to ignore).
41. See MODEL RULES OF PROF'L CONDUCT R. 3.8 cmt. 1 (1983) (A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.).
42. See supra note 1. Of course, excessive caseloads do help defendants by limiting the number of cases that prosecutors can bring to trial and thus creating more favorable plea bargain offers for defendants. As we explain below, however, the force of this argument is limited.
43. See infra notes 132-40 and accompanying text.
44. See infra notes 132-40 and accompanying text.
45. See Stephanos Bibas & Richard A. Bierschbach, Integrating Remorse and Apology into Criminal Procedure, 114 YALE L.J. 85, 137 (2004) (explaining how [v]ictims do not want vengeance so much as additional rights to participate and pointing out that most victims do not receive an opportunity to discuss their cases with prosecutors).
46. See, e.g., Alan M. Dershowitz, THE BEST DEFENSE, at xxi (1982) (famously remarking that Rule 1 of the justice game is that [a]lmost all criminal defendants are, in fact, guilty).
47. See Gershowitz, Raise the Proof, supra note 3, at 87 (noting that prosecutors' offices already receive greater funding than public defenders' offices do).
48. See, e.g., Scott Wallace, Parity: The Failsafe Standard, in 1 BUREAU OF JUSTICE ASSISTANCE, OFFICE OF JUSTICE PROGRAMS, U.S. DEP'T OF JUSTICE, COMPENDIUM OF STANDARDS FOR INDIGENT DEFENSE SYSTEMS 13, 17 (2000), available at http://www.mynlada.org/defender/DOJ/standardsv1/ welcome.html (Congress appropriated $100 million for fiscal year 2001 to allow states to hire 'community prosecutors'. [but did not] include matching funds for the constitutionally mandated provision of legal representation services in the new cases which will be filed by the new prosecutors.).
49. See BUREAU OF JUSTICE STATISTICS, OFFICE OF JUSTICE PROGRAMS, U.S. DEP'T OF JUSTICE, PROSECUTORS IN STATE COURTS, 2005, at 2 (2006) [hereinafter PROSECUTORS IN STATE COURTS, 2005], available at http://bjs.ojp.usdoj.gov/content/pub/pdf/psc05.pdf.
50. See infra Table 1 (showing prosecution caseloads for large district attorneys' offices in the United States).
51. See NAT'L ADVISORY COMM'N ON CRIMINAL JUSTICE STANDARDS & GOALS, TASK FORCE REPORT ON THE COURTS, Standard 13.12 (1973).
52. See Nat'Legal AID & DEFENDER ASS'N, DEFENDER LEGAL SERVS., http://www.nlada.org/Defender/Defender-Standards/Defender-Standards-NLAD A (last visited Dec. 31, 2010).
53. See, e.g., AM. BAR ASS'N, STANDING COMM. ON LEGAL AID & INDIGENT DEFENDANTS, GIDEON'S BROKEN PROMISE: AMERICA'S CONTINUING QUEST FOR EQUAL JUSTICE 17-18 (2004), available at http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/fullre port.pdf
54. See Hashimoto, supra note 1, at 504-505 (noting that while the guidelines have been the subject of some criticism over the years, they have gained widespread acceptance as absolute maximum limits for indigent defenders, and they remain the benchmark frequently cited and relied upon to this day (footnotes omitted)).
55. see also Catherine Greene Burnett, Michael K. Moore & Allan K. Butcher, In Pursuit of Independent, Qualified, and Effective Counsel: The Past and Future of Indigent Criminal Defense in Texas, 42 S. TEX. L. REV. 595, 678-408 (2001) (criticizing caseloads falling outside the suggested guidelines).
56. Deborah L. Rhode, Whatever Happened to Access to Justice?, 42 LOY. L.A. L. REV. 869, 894 (2009) (Annual caseloads for public defenders can range between 500 and 900 felony matters or over 2,000 misdemeanors. Such workloads vastly exceed the standards of the National Advisory Commission on Criminal Justice, which set ceilings of 150 felonies and 400 misdemeanors. (footnote omitted)).
57. Some experts have suggested developing more nuanced guidelines that provide for weighted caseloads based on the types of cases being handled by defenders.
58. See NAT'L RIGHT TO COUNSEL COMM., JUSTICE DENIED: AMERICA'S CONTINUING NEGLECT OF OUR CONSTITUTIONAL RIGHT TO COUNSEL 192-194 (2009) [hereinafter NAT'L RIGHT TO COUNSEL COMM., JUSTICE DENIED], available at http://www.constitutionproject.org/pdf/139.pdf.
59. The American Prosecutors Research Institute studied the problem, but it concluded that differences in office size, organization, and case types made a national standard impossible and undesirable.
60. See AM. PROSECUTORS RESEARCH INST., HOW MANY CASES SHOULD A PROSECUTOR HANDLE? RESULTS OF THE NATIONAL WORKLOAD ASSESSMENT PROJECT 27-29 (2002), available at http://www.ndaa.org/pdf/How%20Many%20Cases.pdf.
61. For a discussion of other considerations in comparing prosecutor and defender workloads, see Wright, supra note 1, at 236-238.
62. See Backus and Marcus, supra note 1, at 1053-1059.
63. See id. at 1031-1057.
64. Hashimoto, supra note 1, at 464.
65. In August 2006, Kristin Guiney, an Assistant District Attorney in the Harris County District Attorney's Office, contacted the largest prosecutors' offices in the country by e-mail and phone to ascertain the number of attorneys, paralegals, and support staff they employed. Coupling this information with publicly available data on felony and misdemeanor filings, she was able to determine an average number of case filings per prosecutor for each office. The authors are unaware of any comparable nationwide data set compiled before or since the 2006 Harris County study.
66. The data for Table 1 are drawn from CHUCK ROSENTHAL, HARRIS CNTY. DIST. ATTORNEY, 2006 PERSONNEL PRESENTATION 1 (2006) [hereinafter ROSENTHAL PRESENTATION] (slide entitled Statistics Used for Comparative Analysis) (on file with authors).
67. The data for Wayne County underestimate the number of felony and misdemeanor filings per year. The data likely consider only charges handled by the warrant division, and do not include the 30,000 to 40,000 additional cases handled by specialty divisions. See E-mail from Maria Miller, Assistant Prosecuting Attorney, Wayne Cnty. Dist. Attorney's Office, to Adam Gershowitz, Assoc. Professor of Law, Univ. of Hous. Law Ctr. (July 12, 2010, 15:49 CST) (on file with authors). Accordingly, the number of cases per prosecutor is considerably higher than the table indicates.
68. See, e.g., Brian Rogers, Mike Glenn & Rosanna Ruiz, Rosenthal Steps Up in Officer's Death: DA Says Meeting Slain Policeman's Family Persuaded Him to Take Case, HOUS. CHRON., Sept. 26, 2006, at B1 (quoting an elected district attorney who had agreed to personally prosecute a case as saying he could not recall the last time he helped prosecute a case, but guessed that it ha[d] been several years).
69. Cf., e.g., SANTA CLARA DISTRICT ATTORNEY ADMINISTRATORS SALARY SURVEY 4 (2006) (on file with authors) (listing the Chief Assistant D.A. as an executive attorney).
70. Such departments include trial, appellate, white collar crime, consumer fraud, asset forfeiture, and check fraud, to name but a few.
71. These descriptions are based on the office structure of the Harris County District Attorney's Office, where the second author serves as an assistant district attorney. Based on informal discussions with prosecutors from other large offices, many other offices employ a similar, though by no means identical, organizational structure.
72. See E-mail from Colleen E. Bauer, Paralegal, Trial Div., Phila. Dist. Attorney's Office, to Sachiv P. Mehta (Mar. 9, 2010, 08:32 CST) [hereinafter E-mail from Colleen E. Bauer] (on file with authors).
73. These and other facts regarding the Harris County District Attorney's Office are based on the experience of the second author, who has served as a felony prosecutor in the Harris County District Attorney's Office for several years.
74. See supra note 26 and accompanying text (describing the recommended workload of 150 felony cases for public defenders).
75. See Telephone Interview with Randy Roberts, Exec. Assistant State's Attorney, Cook Cnty. State's Attorney's Office (Mar. 2, 2010).
76. See id. Indeed, in some years, Cook County prosecutors have even been paid less than their public defender counterparts while handling more cases.
77. See John Flynn Rooney, Survey: Public Defenders Earn Slightly More than Prosecutors, CHI. DAILY L. BULL., Sept. 22, 2008, at 1 (reporting that the public defender's office attributed defenders' higher salaries to the fact that they are unionized).
78. See E-mail from, Admin. Specialist, Tarrant Cnty. Dist. Attorney's Office, to Sachiv P. Mehta (Feb. 2, 2010, 15:19 CST) (on file with authors)
79. See E-mail from Colleen E. Bauer, supra note 43.
80. See Alan Maimon, Court Stalls over Caseloads: Justices Expected More Guidance from Report, LAS VEGAS REV.-J., Oct. 7, 2009, at 5B.
81. See id.
82. See E-mail from Cara L. Campbell, Chief Deputy Dist. Attorney, Training & Recruitment, Clark Cnty. Dist. Attorney's Office, to Sachiv P. Mehta (Feb. 2, 2010, 18:36 CST) [hereinafter E-mail from Cara L. Campbell] (on file with authors).
83. See E-mail from Cara L. Campbell, Chief Deputy Dist. Attorney, Training & Recruitment, Clark Cnty. Dist. Attorney's Office, to Sachiv P. Mehta (Jan. 29, 2010, 11:44 CST) (on file with authors).
84. See William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 566 (2001) (Over the course of the past century the number of criminal charges filed has increased very substantially.).
85. See, e.g., Jane Hadley, Domestic Violence Cases Overwhelm Prosecutors, SEATTLE POSTINTELLIGENCER, Nov. 7, 1995, at B1 (citing changes in the law, societal awareness, increased reporting, and increased special domestic violence police units as reasons for a 400% surge in felony domestic abuse cases in King County, Washington, in a five-year period).
86. Compare DISTRICT COURTS: REPORTED CRIMINAL ACTIVITY BY COUNTY FROM JANUARY 1, 2005 TO DECEMBER 31, 2005, http://www.dm.courts.state.tx.us/OCA/ReportSelection.aspx (select District Court Data Reports as the Report Type and Reported Criminal Activity by County as the Report, and then click Continue.
87. Then select January 2005 and December 2005 as the Month and Year and Dallas as the County and click Run Report) (last visited Jan. 2, 2011) (33,474 felony filings), with DISTRICT COURT: REPORTED CRIMINAL ACTIVITY BY COUNTY FROM JANUARY 1, 2009 TO DECEMBER 31, 2009, http://www.dm.courts.state.tx.us/OCA/ReportSelection.aspx (same query, but use January 2009 and December 2009 instead) (last visited Jan. 2, 2011) (37,013 felony filings).
88. Case filings in Harris County rose from 108,608 in 2006, supra Table 1 (showing that 39,154 felonies and 69,454 misdemeanors were filed in 2006), to 131,100 in 2009, see E-mail from Jessica Milligan, Assistant Dist. Attorney, Harris Cnty. Dist. Attorney's Office, to Adam Gershowitz, Assoc. Professor of Law, Univ. of Hous. Law Ctr. (Mar. 18, 2010, 10:53 CST) (on file with authors) (reporting that 50,004 felonies and 81,096 misdemeanors were filed in 2009).
89. Compare supra Table 1 (showing less than 59,000 cases in 2006), with Telephone Interview with Jane Allen, San Bernardino Cnty. Dist. Attorney's Office (Feb. 11, 2010) (on file with authors) (reporting more than 71,000 cases in 2008).
90. Compare JUDICIAL COUNCIL OF CAL., 2006 ANNUAL REPORT: PROGRESS THROUGH UNITY 25 (2006) (reporting 1,575,098 filings), with JUDICIAL COUNCIL OF CAL., 2007 ANNUAL REPORT: BUILDING THE BRANCH 22 (2007) (reporting 1,691,790 filings).
91. STATE OF N.Y., UNIFIED COURT SYSTEM: REPORT OF THE CHIEF ADMINISTRATOR OF THE COURTS: FOR THE CALENDAR YEAR JANUARY 1, 2008-DECEMBER 31, 2008, at 18 (2008), available at http://www.courts.state.ny.us/reports/annual/pdfs/UCSAnnualReport2008.pd f (noting an increase from 1,705,369 cases in 2004 to 1,894,925 cases in 2008).
92. See William J. Stuntz, Plea Bargaining and Criminal Law's Disappearing Shadow, 117 HARV. L. REV. 2548, 2554-2555 (2004) (explaining how prosecutorial budgets are unable to keep up with increasing caseloads).
93. See PROSECUTORS IN STATE COURTS, 2005, supra note 24, at 2 & fig.1.
94. See E-mail from Maria C. Miller, Assistant Prosecuting Attorney & Dir. of Commc'ns, Wayne Cnty., to Adam Gershowitz, Assoc. Professor of Law, Univ. of Hous. Law Ctr. (Mar. 4, 2010, 11:32 CST) (on file with authors) (Currently we have 142 prosecutors on staff, down from 190 in 2008.).
95. Email from Maria C. Miller, Assistant Prosecuting Attorney & Dir. of Commc'ns, Wayne Cnty., to Adam Gershowitz, Assoc. Professor of Law, Univ. of Hous. Law Ctr. (Mar. 4, 2010, 16:44 CST) (on file with authors) (attributing the decline in prosecutorial staff to not being allowed to hire new prosecutors when others retired as well as to nine layoffs in response to a budget reduction).
96. Compare Telephone Interview with Cara L. Campbell, Chief Deputy Dist. Attorney for Training & Recruitment, Clark Cnty. Dist. Attorney's Office (Mar. 1, 2010) (on file with authors) (reporting that prosecutorial staff were cut down to 102 by 2010), with supra Table 1 (showing 135 prosecutors on staff in 2006).
97. See Telephone Interview with Randy Roberts, supra note 46.
98. See Levi Pulkkinen, Public Defense Lawyers Protest Cuts: County Budget Plan Will Hurt Poor, They Say, SEATTLE POST-INTELLIGENCER, Oct. 31, 2008, at B1.
99. See Telephone Interview with Jane Allen, Special Assistant Deputy Dist. Attorney, San Bernardino Cnty. Dist. Attorney's Office (Mar. 4, 2010).
100. Letter from Debbie MacKenzie, Maricopa Cnty. Dist. Attorney's Office, to Adam Gershowitz (Mar. 30, 2010) (on file with authors).
101. See Chris Moran, County Budget Cuts Translate into Layoffs, HOUS. CHRON., Mar. 26, 2010, at B3.
102. See E-mail from Renata Annati, Human Res. Dir., Broward Cnty. Office of the State Attorney, to Adam Gershowitz, Assoc. Professor of Law, Univ. of Hous. Law Ctr. (Mar. 8, 2010, 08:51 CST) (on file with authors).
103. See E-mail from Lorna Salomon, Senior Emp't Counsel & Records Custodian, Miami-Dade Office of the State Attorney, to Adam Gershowitz, Assoc. Professor of Law, Univ. of Hous. Law Ctr. (Mar. 11, 2010, 12:58 CST) [hereinafter E-mail from Lorna Salomon] (on file with authors).
104. See Backus and Marcus, supra note 1, at 1096-1103.
105. See supra Table 1 (providing criminal cases filed in 2006 by the prosecutors' offices for Harris, Dallas, Tarrant, and Bexar counties).
106. See ROSENTHAL PRESENTATION, supra note 37.
107. See E-mail from Cara L. Campbell, supra note 52.
108. See E-mail from Cara L. Campbell, Chief Deputy Dist. Attorney, Training & Recruitment, Clark Cnty. Dist. Attorney's Office, to Sachiv P. Mehta (Jan. 29, 2010, 10:58 CST) (on file with authors).
109. See E-mail from Dan Donohoe, King Cnty. Prosecutor's Office, to Sachiv P. Mehta (Feb. 12, 2010, 03:21 CST) (on file with authors).
110. See ROSENTHAL PRESENTATION, supra note 37.
111. See E-mail from Lorna Salomon, supra note 71.
112. The data for Table 2 are drawn from ROSENTHAL PRESENTATION, supra note 37.
113. Reporters spend a considerable amount of time in county courthouses learning about the terrible crimes committed by criminal defendants. Those same reporters interact with prosecutors on a daily basis and likely come to view them (or at least some of them) as noble public servants. It is therefore difofficult to see how reporters would be completely biased toward writing stories that focus only on the problems faced by criminal defendants.
114. For an overview of the litigation and the stages of reform efforts.
115. see Drinan, supra note 1.
116. See Gershowitz, Raise the Proof, supra note 3, at 100-106.
117. See William Glaberson, The Right to Counsel, N.Y. TIMES, Mar. 21, 2010 (Metropolitan Desk), at 1.
118. See Jim Nolan, Bills Allow More Pay for Public Defenders: Supporters Say Legislation Is Step Toward Better Va. Justice System, RICHMOND TIMES-DISPATCH, Feb. 27, 2007, at A1 (discussing Covington & Burling's involvement in Virginia indigent defense reform).
119. Leonard Post, Indigency Programs Spark Court Clashes: Lack of Lawyers for the Poor Fuel Suits in Six States, NAT'L L.J., Nov. 1, 2004, at 1 (discussing the other three firms' involvement in Michigan, Mississippi, and New York).
120. See Drinan, supra note 1 (discussing decades of indigent defense lawsuits and varied levels of success in challenging the inadequate funding of indigent defense programs).
121. Of course, line prosecutors may protest their excessive caseloads by quitting and taking more attractive jobs. Many overworked line prosecutors do just that after only a few years.
122. See, e.g., Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 STAN. L. REV. 29, 63 (2002) (discovering from interviews that the average tenure of line prosecutors (assistant district attorneys) in New Orleans is roughly two years).
123. Cf., e.g., Pulkkinen, supra note 66 (describing how public defenders are protesting a proposed funding cut that they say would gut legal representation for poor defendants).
124. For instance, in Virginia, Steven Benjamin, an extremely well-regarded attorney, filed an unsuccessful challenge arguing that appointed lawyers were underfunded.
125. See Gershowitz, Raise the Proof, supra note 3, at 100-185.
126. While appointed lawyers do need to be concerned about being denied appointed cases in the future, this concern relates to maintaining good relationships with judges. And, in most instances, judges have little reason to be upset with appointed counsel for initiating litigation that challenges excessive workloads. Indeed, the excessive workload of appointed counsel may negatively impact judges by burdening their dockets and slowing down their courtroom proceedings.
127. For instance, at least four well-known criminal law professors on the faculty of George Washington University Law School-Paul Butler, Roger Anthony Fairfax, Orin S. Kerr, and Stephen A. Saltzburg- were formerly federal prosecutors.
128. See Faculty Directory, GW LAW, http://www.law.gwu.edu/Faculty/List.aspx (last visited Nov. 1, 2010).
129. Of course, resources are limited even for federal prosecutors and much federal crime must go unprosecuted. See Richman and Stuntz, supra note 4, at 613 (noting that the extreme disjunction between federal jurisdiction and federal resources has bred a norm of radical underenforcement).
130. For instance, Professors Erica J. Hashimoto, Norman Lefstein, and Mae C. Quinn all served as public defenders.
131. See ASS'N OF AM. LAW SCHOOLS, THE AALS DIRECTORY OF LAW TEACHERS 2007-2008, at 592,725-918 (2008).
132. For examples of their indigent defense scholarship.
133. see Hashimoto, supra note 1.
134. Lefstein, supra note 1.
135. Mae C. Quinn, Whose Team Am I on Anyway? Musings of a Public Defender About Drug Treatment Court Practice, 26 N.Y.U. REV. L. & SOC. CHANGE 37 (2001).
136. See supra notes 26-30 and accompanying text.
137. See infra notes 156-58 and accompanying text (discussing this windfall to undeserving criminal defendants). In some ways, the windfall to the entire class of criminal defendants is a good thing. Given that many defense counsel are overburdened and that legislatures tend to increase sentencing ranges to appear tough on crime, placing time and resource constraints on prosecutors helps to level the playing field somewhat and avoid excessive punishments.
138. Cf. SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS, at tbl.5.19.2004, available at http://www.albany.edu/sourcebook/pdf/t5192004.pdf (listing 105 months as the mean sentence of incarceration for robbery). For most crimes, the bargaining range is likely to be both small and familiar to the parties, as both prosecutors and defense attorneys have a great deal of information about customary practices. Each side, in other words, is likely to have a good sense of the 'market price' for any particular case.
139. Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1923 (1992) (footnote omitted).
140. As Professor Eric Miller has explained, The prosecutor exercises the sole power to recommend that a defendant be diverted to drug court. If the prosecutor decides that the criteria do not apply, the defendant has no further recourse and must proceed through the criminal justice system in the normal manner.
141. Eric J. Miller, Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism, 65 OHIO ST. L.J. 1479, 1540 (2004) (footnote omitted).
142. see also Quinn, supra note 96, at 57 (Like other diversionary programs, most drug treatment courts operate at the whim of the prosecution. In New York, drug courts cannot make promises to defendants without the approval of the Office of the District Attorney. (footnote omitted)).
143. See Michael M. O'Hear, Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice, 20 STAN. L. & POL'Y REV. 463, 463 (2009) (noting that specialized drug treatment courts have grown phenomenally popular, with nearly 2,000 now in existence).
144. This scenario is unfortunately extremely common. See Editorial, A Trail of Ill Repute: Crackdown on Prostitution Needs to Address Substance Abuse, SARASOTA HERALD-TRIB., Oct. 2, 2006, at A10 (Many of the prostitutes are repeat offenders who have substance-abuse problems.).
145. See Josh Bowers, Contraindicated Drug Courts, 55 UCLA L. REV. 783, 798-799 (2008) (describing how prosecutors in New York City typically sent only first-time offenders to drug court).
146. Unfortunately and unsurprisingly, there is a close connection between prostitution and drug addiction. The Bureau of Justice Statistics reported that in one study 85% of females arrested for prostitution tested positive for drugs. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, FACT SHEET: DRUG-RELATED CRIME 2 (1994).
147. Although studies conflict, there is evidence that defendants who complete drug court have lower recidivism rates. For a list of the conflicting studies.
148. see Leslie Paik, Maybe He's Depressed: Mental Illness as a Mitigating Factor for Drug Offender Accountability, 34 LAW & SOC. INQUIRY 569, 575 (2009).
149. See Brady v. Maryland, 373 U.S. 83-87 (1963).
150. See Brandon L. Garrett, Innocence, Harmless Error, and Federal Wrongful Conviction Law, 2005 WIS. L. REV. 35-54 (reporting that Brady claims are one of the most common fair-trial claims brought in wrongful conviction cases).
151. For an excellent assessment of Brady issues and criticisms of particular violations.
152. see Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors Play, 57 CASE W. RES. L. REV. 531 (2007).
153. See Corn & Gershowitz, supra note 11, at 401-405.
154. See Strickler V. Greene, 527 U.S. 263-288 (1999) ([U]nder Brady an inadvertent nondisclosure has the same impact on the fairness of the proceedings as deliberate concealment.).
155. This scenario is realistic for many prosecutors.
156. See Hadley, supra note 55 (noting that prosecutors handling domestic violence trials ha[ve] five or six cases scheduled for trial [every] day and that [b]ecause they can't predict which case will actually go to trial on any day, prosecutors are not able to spend the time with the victim that would help ensure the victim will remain willing to testify).
157. cf. Kim Smith, Why Wheels of Justice Roll Slowly in Tucson: Reasons Are Numerous for Lengthy Trial Delays, ARIZ. DAILY STAR, Dec. 26, 2006, at A1 (explaining that judges often schedule three or four trials for the same day in the hope one of them will actually move forward).
158. Prosecutors are often required to give the defendant notice of a variety of things, such as expert witnesses and intention to use prior convictions at sentencing.
159. See Boyd Patterson, Non-existent Trophies: Trial Preparation for Prosecutors, PROSECUTOR, Oct./Nov./Dec. 2009, at 40-41 (noting the massive hit prosecutors can take for failing to file witness lists or notices of intent to use defendants' prior convictions).
160. There is no specific constitutionally imposed deadline for turning over Brady material. For differing views on whether prosecutors should be obligated to disclose Brady material during plea bargaining, compare John G. Douglass, Fatal Attraction? The Uneasy Courtship of Brady and Plea Bargaining, 50 EMORY L.J. 437 (2001), which cautions against extending the Brady doctrine,
161. with Kevin C. McMunigal, Disclosure and Accuracy in the Guilty Plea Process, 40 HASTINGS L.J. 957 (1989), which advocates Brady disclosure during plea bargaining.
162. See, Jamison v. Greiner, Nos. 02-CV-1351(JBW), 03-MICS-0066(JBW), 2003 WL 22956951, at 6 (E.D.N.Y. Oct. 21, 2003) (finding that prosecutors should have turned over conflicting statements made by a witness in a presentence report but that the statements were not critical enough to merit reversal), aff'd, 166 F. App'x 545 (2d Cir. 2006).
163. See, supra note 113, at 455 n.72 (Concerns for witness safety generally account for the government's position that witness-related disclosure should be delayed until the eve of trial in many cases.).
164. For example, the prosecutor who meets with her witnesses only at the last minute might fail to check back with the police who investigated the crime and then learn, as the police officer did, that the witness had previously been convicted of theft. Because theft is a crime of honesty, it is impeachment evidence that should be disclosed.
165. See, e.g., United States v. Price, 566 F.3d 900, 912-14 (9th Cir. 2009) (finding a Brady violation when the prosecutor failed to disclose, as the police knew, that the key witness had been arrested for theft and theft by deception and convicted of other crimes). And because police officers' knowledge is imputed to prosecutors under the Brady doctrine, this inadvertent mistake amounts to a constitutional violation.
166. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) ([T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.). Similarly, the busy prosecutor in a sexual assault case may fail to realize and disclose to the defense that the complainant had previously made unsubstantiated allegations against another individual many years before, although this information might be contained in the case file or known to the investigating officers.
167. Cf. Stephanos Bibas, The Real-World Shift in Criminal Procedure, 93 J. CRIM. L. & CRIMINOLOGY 789, 812-13 (2003) (book review) (noting how professors tend to focus on Supreme Court doctrine rather than real-world scenarios).
168. See, Wright, Response, Guilty Pleas and Submarkets, 157 U. PA. L. REV. PENNUMBRA 68, 73 n.22 (2008), http://www.pennumbra.com/responses/11-2008/Wright.pdf.
169. See, Brady, Arrests Without Prosecution and the Fourth Amendment, 59 MD. L. REV. 1, 3 (2000) (Contrary to those widely held beliefs, in a number of large jurisdictions, the majority of criminal cases at the state level, both misdemeanors and felonies, are dismissed without prosecution.).
170. See BUREAU OF JUSTICE STATISTICS, FELONY DEFENDANTS IN LARGE URBAN COUNTIES, 2002, at 16 (2006) (finding that among the 38% of felony defendants in the largest 75 counties who were jailed awaiting trial, 5 out of 6 did not post bond even though a bail amount was set).
171. See, e.g., Steve McVicker, County Jail Deaths on Pace to Double'06 Total, HOUS. CHRON., Apr. 8, 2007, at A1 (discussing deaths of inmates in the Harris County jail who were awaiting trial and attributing some deaths to poor medical care);
172. see also Bowers, supra note 15, at 1133-34 (describing the pretrial process as punishment in itself).
173. See, e.g., Smith, supra note 111 (noting that because Maricopa County, Arizona, has a far greater number of prosecutors per capita than Pima County, Arizona, the average time from arraignment to resolution of a felony case is 46 days in Maricopa County compared with 147 days in Pima County).
174. Of course, this assumes that counsel are promptly appointed to indigent defendants early in the process, which is not always the case. In this vein, Professor Douglas Colbert has argued persuasively that courts are better served by appointing counsel to indigent defendants at bail hearings in part so that counsel can help to identify weaker cases and remove them from the system.
175. See Douglas L. Colbert, Thirty-Five Years After Gideon: The Illusory Right to Counsel at Bail Proceedings, 1998 U. ILL. L. REV. 1, 43-44 (Rather than waiting several weeks until a lawyer first appears, these weaker charges can be identified at the outset, allowing judges and prosecuting attorneys to avoid squandering valuable time on them.).
176. Indeed, because judges are often under pressure to keep dockets small, they pass that pressure onto prosecutors and defense lawyers by expecting them to resolve cases quickly.
177. See, Rodney J. Uphoff, The Criminal Defense Lawyer as Effective Negotiator: A Systemic Approach, 2 CLINICAL L. REV. 73, 116 (1995) (To relieve pressure on their dockets, judges push all of the actors in the system to settle their cases.).
178. See MODEL RULES OF PROF'L CONDUCT R. 3.8(a) (2004). This rule has been the subject of criticism, however.
179. See Bennett L. Gershman, A Moral Standard for the Prosecutor's Exercise of the Charging Discretion, 20 FORDHAM URB. L.J. 513, 522-23 (1993) (maintaining that prosecutors should be morally certain that defendants are guilty before proceeding to trial).
180. See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463, 2472 (2004).
181. See id. (Losses at trial hurt prosecutors' public images, so prosecutors have incentives to take to trial only extremely strong cases and to bargain away weak ones.).
182. See Bowers, supra note 15, at 1152-53.
183. See D. Michael Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. CRIM. L. & CRIMINOLOGY 761, 780 (2007) (finding a minimum of a 3.3% wrongful conviction rate in capital rape-murder trials during the 1980s).
184. See Ellen S. Podgor, White Collar Innocence: Irrelevant in the High Stakes Risk Game, 85 CHI.-KENT L. REV. 77, 84-87 (2010) (explaining how the cost of trial and the risk of conviction are so great that innocent defendants might have an incentive to plead guilty or agree to deferred prosecution);
185. Rodney Uphoff, Convicting the Innocent: Aberration or Systemic Problem?, 2006 WIS. L. REV. 739-798 ([E]ven innocent defendants choose to plead guilty simply to get out of jail.).
186. Although there are multiple paths by which the wrongly convicted can be exonerated, DNA testing receives the most attention. Yet from 1989, when DNA testing began, until 2007, only slightly more than two hundred individuals were exonerated by postconviction DNA testing.
187. See Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55-57 (2008).
188. See DERSHOWITZ, supra note 21, at xxi (Rule I: Almost all criminal defendants are, in fact, guilty.).
189. For a commentary on this phenomenon, consider the memorable exchange from the 1994 film, The Shawshank Redemption: Andy Dufresne: What about you? What are you in here for? Red: Murder, same as you. Andy Dufresne: Innocent? Red: Only guilty man in Shawshank. THE SHAWSHANK REDEMPTION (Columbia Pictures 1994).
190. See Scott & Stuntz, supra note 99, at 1946 (In the absence of reliable signals that they can afford to take seriously, prosecutors have no viable option other than to ignore claims of innocence.).
191. See RONALD WEITZER & STEVEN A. TUCH, RACE AND POLICING IN AMERICA: CONFLICT AND REFORM 1-13 (2006).
192. See Gerald E. Frug, City Services, 73 N.Y.U. L. REV. 23, 75 (1998) (discussing a powerful suspicion, even hatred, of the police in poor African-American neighborhoods).
193. See generally Michael M. O'Hear, Plea Bargaining and Victims: From Consultation to Guidelines, 91 MARQ. L. REV. 323, 327 (2007) ([M]any victims are themselves involved in criminal activity, live in neighborhoods with high crime rates, or are otherwise at high risk for involvement in or exposure to additional offenses.).
194. See David A. Harris, The War on Terror, Local Police, and Immigration Enforcement: A Curious Tale of Police Power in Post-9/11 America, 38 RUTGERS L.J. 1, 41 (2006) (When immigrants fear the police enough to make efforts to avoid them, fewer of them will report crimes, whether they are victims or witnesses, than would be the case were they not afraid of the police.).
195. see also Sandra Guerra Thompson, Speech, Latinas and Their Families in Detention: The Growing Intersection of Immigration Law and Criminal Law, 14 WM. & MARY J. WOMEN & L. 225, 234 (2008) ([Police] need the Latino community to cooperate with them to report crimes and to testify against criminals. (footnote omitted)).
196. See DERSHOWITZ, supra note 21, at xxi.
197. See supra note 1.
198. See William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 YALE L.J. 1, 10-11 (1997) (The real key to the statutory fee schedules, however, is not the hourly amounts but the caps on total fees. Most states have such caps. Thus, a typical appointed defense lawyer faces something like the following pay scale: $30 or $40 an hour for the first twenty to thirty hours, and zero thereafter. (footnotes omitted)).
199. As Professor Bowers has explained, [A] great many defense attorneys currently counsel their innocent clients to plead guilty even when no judicially sanctioned devices (like equivocal or no-contest pleas) are available.
200. Bowers, supra note 15, at 1174.
201. See id. at 1143 ([P]rosecutors make frequent offers of pleas to noncriminal violations and timeserved dispositions.).
202. The same problem exists when defense counsel are overburdened.
203. See Backus & Marcus, supra note 1, at 1032 (recounting examples of this type of unwarranted imprisonment due to delay, such as the case of a man arrested for failing to pay the $1.75 subway fare who ended up in jail for fifty-four days before an attorney was appointed to represent him).
204. See Uphoff, supra note 130, at 798.
205. For an excellent overview on the inaccuracy of eyewitness testimony generally, see Sandra Guerra Thompson, Beyond a Reasonable Doubt? Reconsidering Uncorroborated Eyewitness Identification Testimony, 41
206. See MALCOLM M. FEELEY, THE PROCESS IS THE PUNISHMENT 206 (1979) (When the choice is between freedom for those who plead guilty and jail for those who want to invoke their right to trial, there is really no choice at all.).
207. See Adam M. Gershowitz, Twelve Unnecessary Men: The Case for Eliminating Jury Trials in Drunk Driving Cases 16-17 (Univ. of Houston, Public Law & Legal Theory Series 2010-A-5, 2010), available at http://ssrn.com/abstract=1550733 (noting that the collateral consequences of drunk driving convictions weigh much more heavily on wealthy defendants than on poor defendants).
208. See Bibas and Bierschbach, supra note 20, at 136 ([V]ictims lose control when they are victimized and again when their cases disappear into the criminal justice system.).
209. See Heather Strang & Lawrence W. Sherman, Repairing the Harm: Victims and Restorative Justice 2003 UTAH L. REV. 15, 20.
210. See id. (Victims repeatedly say that one of the greatest sources of frustration to them is the difficulty in finding out from criminal justice authorities about developments in their cases.).
211. See Bibas and Bierschbach, supra note 20, at 138.
212. See Michelle Permenter, Crime Victims' Rights in Texas, HOUS. LAW., Jan./Feb. 2009, at 8, 10 (explaining how victim assistance coordinators help victims to maneuver through the Harris County criminal justice system).
213. See Norm Maleng, Charging and Sentencing: Where Prosecutors' Guidelines Help Both Sides, 1 CRIM. JUST. 6, 43-44 (1987) (noting that internal policies of the King County District Attorney's Office require prosecutors to contact victims and give them an opportunity to be heard before reducing or dismissing charges).
214. See 4 WILLIAM BLACKSTONE, COMMENTARIES 358.
215. See, e.g., Gershowitz, supra note 147, at 17-18 (noting the difficulties that inexperienced junior prosecutors face in trying to debunk scientific challenges to breathalyzer tests).
216. See Gershowitz, Raise the Proof, supra note 3, at 97-98.
217. Indeed, in large cities, many defense lawyers are former prosecutors who switched sides likely in part to escape the crushing caseloads that they shouldered for government pay.
218. See Morris B. Hoffman, Paul H. Rubin & Joanna M. Shepherd, An Empirical Study of Public Defender Effectiveness: Selfselection by the Marginally Indigent, 3 OHIO ST. J. CRIM. L. 223, 231 n.38 (2005).
219. See Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. REV. 911, 921 (2006) (describing how criminal justice insiders, like prosecutors, become jaded, noting that [a]fter one has seen many armed robberies, for example, unarmed burglaries and thefts pale in comparison).
220. See, e.g., Erik Luna, The Over criminalization Phenomenon, 54 AM. U. L. REV. 703, 719 (2005) ([L]awmakers have a strong incentive to add new offenses and enhanced penalties, which offer readymade publicity stunts, but face no countervailing political pressure to scale back the criminal justice system.).
221. See, e.g., Jacqueline Soteropoulos, Nov. 21 Trial Date Is Set for Goihman's DUI Case, PHIL. INQUIRER, Sept. 15, 2005, at B4.
222. See, e.g., Press Release, Governor Mitt Romney, Gov. Romney Pushes for Tougher Drunk Driving Penalties (Oct. 26, 2005), available at 2005 WLNR 17359633 (proposing Melanie's Bill, which incarincluded tougher punishments and mandatory sentencing minimums, after thirteen-year-old Melanie Powell was killed by a repeat drunk driver).
223. See Lynette Clemetson, Judges Look to New Congress for Changes in Mandatory Sentencing Laws, N.Y. TIMES, Jan. 9, 2007, at A12.
224. For a discussion of other problems related to mandatory minimums, see Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 WAKE FOREST L. REV. 199 (1993).
225. See BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA 85-167 (2006) (exploring the effects of mass imprisonment on young black men and their families).
226. See MARC MAUER, RACE TO INCARCERATE 92 (2006) (explaining that the United States spends $57 billion per year on incarceration).
227. See Stuntz, supra note 54, at 534 ([A]t the most basic level, elected legislators and elected prosecutors are natural allies. Both need to please voters in order to survive, and for both, pleasing voters means essentially the same thing: punishing people voters want to see punished.).
228. See id. at 526, 532.
229. See Darryl K. Brown, Democracy and Decriminalization, 86 TEX. L. REV. 223, 257 (2007) (explaining how budget constraints prevent prosecutors from enforcing all the crimes on the books).
230. See Richman & Stuntz, supra note 4, at 600 ([T]here are enough of these politically mandatory crimes to occupy all or nearly all of local prosecutors' time and manpower.).
231. See id. at 601-02 (explaining that high-end white collar crime is (with a few rare exceptions) a federal preserve; only the feds have the manpower to deal with the long, intricate paper trails, and only the feds can afford to initiate and pursue major investigations without being certain that those investigations will turn up evidence of serious crimes (footnote omitted)).
232. After all, white collar prosecutions bring significant favorable media attention. See, e.g., Elaine Silvestrini, Feds Announce Surge in Mortgage Fraud Prosecutions, TAMPA TRIB., Nov. 3, 2009, http:// www2.tbo.com/content/2009/nov/03/031717/feds-talk-about-surge-mortgage-f raud/news-realestate/.
233. See, e.g., sources listed supra at note 1.
234. See Drinan, supra note 1, at 443-62 (discussing successes in second generation indigent defense litigation).
235. Although legislative hostility is the typical response, there is cause for optimism. As Professor Ron Wright points out, Some legislators, particularly those with legal training, may be even more sympathetic to procedural fairness than their constituents. They appreciate that the integrity of an adversarial system depends on adequate resources for both sides.
236. Wright, supra note 1, at 261.
237. See Gershowitz, Raise the Proof, supra note 3, at 100-06.
238. See, e.g., NAT'L RIGHT TO COUNSEL COMM., JUSTICE DENIED, supra note 30, at 52-60.
239. See Wright, supra note 1, at 263 ([L]egislators can build momentum for unpopular but necessary measures by linking one set of unpopular choices to a second, more popular set of choices.).
240. See id. at 238-41.
241. According to these prosecutors, their district attorneys' offices were underfunded because legislators were giving money-undeservedly, in some of their opinions-to public defenders' offices. One large district attorney's office informed us that the public defender's office in their city manipulated its caseload statistics by counting cases in which they did no real work and appeared in court only so that they could move to withdraw from representation on conflict of interest grounds. Although we did not survey public defenders, we are confident that many would have complained just as loudly that legislators were increasing funding for prosecutors' offices when the money should have been spent on indigent defense.
242. Wright, supra note 1, at 241.
243. See, e.g., Backus & Marcus, supra note 1, at 1045 (By every measure in every report analyzing the U.S. criminal justice system, the defense function for poor people is drastically underfinansced.).