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.

Engaging Capital Emotions

By Douglas A. Berman[*] & Stephanos Bibas[**]

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Louisiana seeks to execute Patrick Kennedy for raping his eight-year-old stepdaughter.  As the Supreme Court weighs the death penalty for this child rapist, commentators are aghast.  The New York Times and the Los Angeles Times editorial pages call child rape a heinous horror but dismiss this reality.[1]  The death penalty, they claim, is inherently excessive for crimes short of homicide; visceral disgust at child rape, they assert, clouds reasoned reflection about proportional punishment.  This position reflects long-standing criticisms of the death penalty as an expression of raw vengeance, a hot passion that clouds dispassionate justice.  The march of justice seems to be in the other direction: away from emotion and towards reason, from Dr. McCoy to Mr. Spock, from the Furies to Athena in Aeschylus’ Eumenides.

But the Furies will not die so easily, nor should we disdain them.  Emotions and the passions they create are ever-present in our legal system.  They bubble beneath any seemingly cool, detached analysis of crime and punishment.  As astute observers highlight, debates over criminal law and practices turn not on neutral deterrence-speak, but rather on emotion-laden claims and concerns.[2]  The undercurrents of emotion are especially salient in death-penalty debates.  Those who deny or bemoan the benighted persistence of passion fail to appreciate its role.[3]

In this short Essay, we suggest that the conventional attitude toward emotion in punishment is misguided.  Part I begins by describing the existing legal terrain, and then Part II evaluates it normatively.  Descriptively, emotion is unavoidable in criminal justice and particularly in capital punishment.  Indeed, recognizing emotion’s role helps to explain many features of capital-punishment jurisprudence, from the debate over execution methods in Baze to the exemption of juvenile and mentally retarded defendants in Roper and Atkins.[4]  Normatively, emotion is crucial to a criminal justice system that seeks both to educate citizens with its symbolism and to channel their justified outrage.  Emotions deserve respect, especially when they reflect the public’s moral perspective that certain crimes have profound emotional resonance.