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.

A Personal Constitution

Michael Serota[*]

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"[M]ost lawyers . . . hope that their work will be a source of satisfaction in itself.  Indeed, many hope that the intrinsic satisfactions it affords will be important enough to play a significant role in their fulfillment as human beings.”[1]

Introduction

Today’s law school graduates face two disturbing trends in the professional world.  Each is well known, but neither is openly discussed in the law school setting.[2]  First, lawyers suffer from chronic professional dissatisfaction.[3]  Approximately one out of every four lawyers is dissatisfied with her job.[4]  Second, this dissatisfaction exacts an extraordinarily high price on lawyers, the legal profession, and society as a whole.[5]  Most startling, however, is the fact that the widespread dissatisfaction and the associated mental health-related problems prevalent in the legal profession actually begin in law school.[6]

The Effect of Legal Professionalization on Moral Reasoning: A Reply to Professor Vischer and Professor Wendel

Michael Hatfield[*]

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Introduction

I am grateful to Professor Vischer and Professor Wendel for their responses to my essay, Professionalizing Moral Deference;[1] I learned a great deal from each piece.  I also appreciate their patience in enduring my finalization of the essay and am indebted to them both for their personal indulgence and intellectual stimulation.

The aim of my earlier essay was to open a new discussion of lawyers and morality through my reflections on the so-called “Torture Memo.”[2]  Specifically, my essay focuses on the effect of legal training and practice on lawyers’ moral reasoning.[3]  It explores the ways in which we, as lawyers, “come to engage in . . . strategic reasoning,” and express “concern[] about [the] cost to our moral reasoning skills.”[4]  The core argument is that “lawyers are professionalized in a manner that undermines moral reasoning skills,”[5] and that “[t]o suggest that we who are officers of the American judicial system are deficient in moral reasoning is to suggest a deep problem.”[6]  To address this deep problem, I suggest lawyers accept personal moral accountability for professional projects undertaken, idealizing those lawyers who choose their professional projects on personal moral grounds.[7]  Thus, I believe lawyers—such as the authors of the Torture Memo—are subject to criticism on grounds of morality and not merely professional technique.

The responses of Professor Vischer and Professor Wendel, though thought-provoking, do not address my focus on the effect of legal training and practice on lawyers’ moral reasoning.  Instead, the responses of Professor Vischer and Professor Wendel focus on the role of moral reasoning in legal reasoning.

Deference to Clients and Obedience to Law: The Ethics of the Torture Lawyers (A Response to Professor Hatfield)

W. Bradley Wendel[*]

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I.  Introduction

In the early months of the Obama administration, we are learning a great deal more about the previous administration’s program of using “enhanced interrogation techniques” on alleged al-Qaeda detainees.[1]  On April 16, 2009, the new administration released to the public several memos, prepared by lawyers at the Office of Legal Counsel (“OLC”) in the administration of George W. Bush, dealing with certain legal aspects of whether detainees in U.S. custody could lawfully be subjected to torture.  I and many others have criticized the quality of legal reasoning in previously disclosed memos,[2] and it is now conventional wisdom that something went terribly wrong with the legal advising process in the previous administration, at least with respect to terrorism and national security issues.  At the time of this writing, it remains uncertain whether an investigative report of the Justice Department’s Office of Professional Responsibility (“OPR”) will be released to Congress, and whether there will be a public version of the report.[3]  Not surprisingly, the OPR report is rumored to be highly critical of the conduct of the lawyers who prepared these documents.[4]

Professor Hatfield concludes, in my view correctly, that the legal analysis produced by the OLC in the Bush administration was intended not as a good-faith attempt to determine what the law requires, but to lay the groundwork for American personnel to later claim reliance on the advice of counsel if subjected to prosecution for human-rights violations.  There are two strands to Professor Hatfield’s critique of the advising process.  The first is positive, or empirical, and the second is normative.  The positive claim is that OLC lawyers such as Jay Bybee and John Yoo lost sight of their moral compass because as lawyers they were professionally socialized into a kind of moral anesthesia.[5]  The normative claim is that the profession’s stance toward the immorality of client activities is passive instead of active, that it impermissibly commends a morality of deference to authority over the insistence on the moral responsibility for complicity in wrongdoing.[6] 

I will have something to say about each of these points in turn, but my overall reaction is that Professor Hatfield’s proposed reform is much too strong.  He would have lawyers act directly on the claims of their own consciences rather than on the requirements of law (including tort, contract, and agency law norms structuring the attorney-client relationship).[7]  This is surprising given his diagnosis of the reason for the bad lawyering in the OLC memos:

I believe these lawyers began with the objective of justifying torture.  They concluded that they were obligated to justify torture, and then they set out to do so.  Whoever was ultimately responsible for requesting the Torture Memo apparently had such an objective, and the lawyers . . . accepted that position as a morally acceptable starting point. They made a bad moral conclusion, and I believe it drove them to make a bad legal argument.[8]

An appeal to conscience would therefore entrench the problem identified by Professor Hatfield.  The last thing lawyers like Jay Bybee and John Yoo should be encouraged to do is to act on their sincere moral convictions in violation of the requirements of law.

Professionalizing Moral Engagement (A Response to Michael Hatfield)

Robert K. Vischer[*]

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In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers “begins with moral desensitization,” a technique that teaches future lawyers “to override [their] moral intuition.”[1]  In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows, some of the most scandalously deficient legal advice may stem (at least in part) from the lawyer’s inability or unwillingness to override his moral intuition.  There is no reason to believe, however, that Yoo’s moral intuition would have led him to reject the conclusions set forth in the memos, and there is some evidence that his moral intuition helped shape his analysis.  Seen in this light, the memos could be construed—in direct opposition to Hatfield’s characterization—as evidence that law schools need to redouble their efforts to train lawyers to override their moral intuition.  But this reaction would miss the partial truth underlying Hatfield’s analysis.  The torture memos do underscore a desensitizing that afflicts many lawyers, though its implications are broader—and perhaps less insurmountable—than Hatfield describes.  Although he is undoubtedly correct that lawyers should “stop telling [one another] that overcoming personal moral squeamishness is the great call of the law,”[2] the law’s call is a bit more nuanced: although lawyers should not ignore their own moral squeamishness, neither should they wallow in it.  The lawyer’s cognizance of her own moral intuition should mark the beginning, not the end, of her inquiry into the moral dimension of the representation.

Professionalizing Moral Deference

Michael Hatfield[*]

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I.  The Torture Memo

As I write this Essay, legal memoranda about torture, once again, are headline news.[1] This Essay considers these memoranda.  However, this Essay does not address the legality of torture or the legal limits of interrogation or even if lawyers who provide bad advice on these issues should be punished.[2]  Instead, this Essay uses what has come to light about the “torture memoranda” to consider broader issues about the contemporary state of becoming and being an American lawyer.  With new memoranda being released, for the sake of convenience, this Essay refers only to the best-known example (at least as things currently stand), which is the August 1, 2002 memo to Alberto Gonzales signed by Jay Bybee and prepared by John Yoo.[3]  Without substantive consideration of counterarguments, that memorandum concluded that torture was not illegal—at least not if the President ordered the torture.[4]  To many, it seems undeniable that the memorandum was not written in a good-faith effort to constrain any possibly illegal behavior, but rather as a shield against future prosecution.[5]

Volition and Voltaire: A Response to Professor Bagenstos

By Tom Lininger[*]

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[Editor's Note:  This piece is the third part of a dialogue between Lininger and Samuel Bagenstos.  Bagenstos's previous post is here; it was a response to Lininger's article, From Park Place to Community Chest: Rethinking Lawyers' Monopoly, 101 Nw. U. L. Rev. (forthcoming 2007), 101 Nw. U. L. Rev. Colloquy 155 (2007) (link).]          

My hat is off to Professor Sam Bagenstos.   Not only has he made a number of incisive points in his reply to my essay, but his record as a civil rights attorney provides a superlative model of public-spirited lawyering.   Unfortunately, most attorneys lack Professor Bagenstos's motivation to advocate for the public good.   Given this reluctance, a system that relies primarily on lawyers' voluntary choices will continue to underserve the legal needs of the poor.   The status quo simply isn't working.

Mandatory Pro Bono and Private Attorneys General

By Samuel R. Bagenstos[*]

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[Editor's Note:  This piece is a response to Tom Lininger's article From Park Place to Community Chest: Rethinking Lawyers' Monopoly, 101 Nw. U. L. Rev. (forthcoming 2007), 101 Nw. U. L. Rev. Colloquy 155 (2007) (link).]          

Not to put too fine a point on it:  Professor Lininger[1]  thinks Professor Rhode[2]  wimps out.  Her "heart is in the right place," but she too readily draws back from proposing mandatory pro bono service.[3]  In this brief response, I want to up the ante.  If Professor Lininger thinks Professor Rhode is a wimp, I think they're both hopeless goo-goos.[4]  We currently have a system of civil rights enforcement that harnesses the profit motive of plaintiffs' attorneys to encourage the prosecution of violations of civil rights laws.  That system may seem crass and disreputable to those who believe that lawyers should bring civil rights actions out of the goodness of their hearts (perhaps while singing "Kumbaya" or, for those of a more lefty persuasion, "If I Had a Hammer").  But it's the best system of civil rights enforcement we've found.

From Park Place to Community Chest: Rethinking Lawyers' Monopoly

By Tom Lininger

Editor’s Note:  This week we deviate from our standard Colloquy Essays and Posts format to publish a special feature, a Review Essay forthcoming in the Northwestern University Law Review.   In this Essay, Professor Tom Lininger reviews Pro Bono in Principle and in Practice:   Public Service and the Professions by Deborah L. Rhode, and pleads to the legal community to exceed Prof. Rhode's rather modest suggestions for curing our current pro bono crisis.   He suggests several courses of action aimed at mitigating our current dearth—indisputable whether measured against other professions or other nations—of altruistic legal representation, including greater focus in law schools and a mandatory minimum hours of pro bono commitment by members of state bars.

Download the PDF here.