Physician, Heal Thyself: Discretion and the Problem of Excessive Prosecutorial Caseloads, a Response to Adam Gershowitz and Laura Killinger

Josh Bowers*

Editor's Note: This Essay is a response to Adam M. Gershowitz & Laura R. Killinger, The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants, 105 Nw. U. L. Rev. 261 (2011).

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I applaud Adam Gershowitz and Laura Killinger for identifying and exploring an almost unconsidered problem: excessive prosecutorial caseloads.[1]  Their premise is that in many large jurisdictions, prosecutors are so overworked that they cannot adequately individualize guilty pleas, assess eligibility and need for rehabilitative programs, comply with disclosure obligations and speedy-trial rules, and (more generally) separate the legally and equitably innocent from the guilty.  Consequently, excessive prosecutorial caseloads have the capacity to burden not only district attorneys' offices but also criminal defendants.

It is no easy feat to recognize a fresh and practically important problem in a criminal justice system that—though shot-through with pathologies—has no shortage of critics on the lookout to spot them.  For that reason alone, their article is a valuable contribution to the literature.  It is all the more impressive that they chart this new territory so well.  Nevertheless, I have three principal concerns.  First, I sense that the problem is not nearly as pervasive as they take it to be.  Second, I believe that prosecutors do not so much lack the ability as the will to manage ballooning caseloads (and, if I am right, this profoundly changes the takeaway).  Third, I foresee a number of reasons—many of which the authors leave unaddressed—to worry far more about excessive public-defender caseloads than prosecutorial caseloads.

Sacrificing Quantity for Quality: Better Focusing Prosecutors’ Scarce Resources

Stephanos Bibas*

Editor's Note: This Essay is a response to Adam M. Gershowitz & Laura R. Killinger, The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants, 105 Nw. U. L. Rev. 261 (2011).

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Adam Gershowitz and Laura Killinger rightly explore an important problem that prosecutors face: they are spread too thin trying to prosecute too many cases.  Their thoughtful, well-written article is an important contribution to the field and usefully complements the burgeoning literature on the underfunding of criminal defense.  As they argue, prosecutorial overwork harms justice in any number of ways.  It delays cases, frustrates victims, makes it harder to spot and free innocent defendants, and impedes lowering punishments for sympathetic defendants.[1]

The root problem, however, is not so much a matter of underfunding of prosecutors’ offices as it is a matter of skewed priorities and metrics of success.  Prosecutors need not pursue every legally supportable charge.  They enjoy discretion in deciding which cases to pursue, which charges to file, and which pleas to offer and accept.  Though they have that discretionary power, too often they do not think strategically about using it.  Indeed, individual prosecutors often reactively prosecute the cases that come before them, instead of proactively setting priorities and focusing on system-wide tradeoffs.  Many offices lack hierarchies or office policies that meaningfully direct line prosecutors’ efforts.  The problem, evinced by the framing of Gershowitz and Killinger’s article, is that prosecutors and the public measure prosecutorial success mostly in terms of the number of cases filed and convictions won.  Throwing money at this problem would only pour fuel on the fire, encouraging prosecutors to widen their nets in the inexhaustible sea of potential cases.

A surer solution is to refocus prosecutors’ efforts to make the best use of inevitably limited money.  For instance, as Gershowitz and Killinger rightly point out, prosecutors pay too little attention to victims and communities, failing to solicit their input and take them seriously.[2]  We must move from worshipping quantity to prizing quality.  Prosecutors need to focus not just on what to do but also how to do it: fairly, respectfully, and effectively.

Hosanna-Tabor and Supreme Court Precedent: An Analysis of the Ministerial Exception in the Context of the Supreme Court’s Hands-Off Approach to Religious Doctrine

Samuel J. Levine

Editor's Note: This essay is the second in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.

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Introduction

The United States Supreme Court’s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court’s Religion Clause jurisprudence.  On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations.  The narrow issue at the center of the case is the "ministerial exception," a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees.  This Essay suggests, however, that the real significance of Hosanna-Tabor goes beyond the Court’s application of the ministerial exception to the particular facts of the case.  This Essay looks at the ministerial exception through the broader prism of the Supreme Court’s "hands-off" approach to religious doctrine, which prohibits judicial inquiry into a wide range of questions relating to religious practice and belief.

Rethinking Extraordinary Circumstances

Scott Dodson[*]

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Introduction

Normally, the entry of an unappealed final judgment ends the case forever, even if later developments undermine faith in the accuracy of the decision or the fairness of its procedural grounds.  Litigation must have an end, and a final judgment usually marks that point.

Rule 60(b), however, has long been available to provide relief from judgment to losing litigants where justice so demands.  The rule states that a court may relieve a party from final judgment "[o]n motion and just terms" under five enumerated grounds (including mistake, newly discovered evidence, fraud, voidness, and judgment satisfaction) and one catchall provision.[1]  The catchall, Rule 60(b)(6), provides that a court can relieve a party from judgment for "any other reason that justifies relief."[2]