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).
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.
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. 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.