By Leeann Poarch, J.D. candidate, Harvard Law School
STUDENT VOICES: The views expressed below are those of the student author and do not necessarily reflect the position of the Access to Justice Lab.
The ABA requires lawyers to limit their caseloads to a level that ensures that they can give their clients adequate representation. However, it has been well-documented that public defense attorneys grapple with overwhelming caseloads that exceed the reasonable capacity for effective representation. For example, a 2023 study documented that public defenders in rural St. Clair County, Missouri, reported caseloads of 350 felony cases per lawyer. This troubling picture of overburdened attorneys threatens defendants’ Sixth Amendment right to the effective assistance of counsel. Accounts of incompetent counsel for indigent defendants are disturbing. They arise even in capital cases, when one would expect the existence of a zealous and thorough defense before the state would take an individual’s life. Advocates and academics alike have rightfully devoted much time and resources to shine a spotlight on this issue and encourage reform. However, as Gershowitz and Killinger point out, there is “virtually no scholarship focusing on the opposite side of the coin.” Scholars have mostly ignored that many prosecutors are as overburdened as their counterparts in public defense offices.
Prosecutors often have hundreds of open felony cases at a time, including multiple murder, robbery, and sexual assault cases set for trial on a given day. Gershowitz and Killinger suggest that “many prosecutors are asked to commit malpractice on a daily basis by handling far more cases than any lawyer can competently manage.” Like the literature surrounding the possible ineffective assistance of counsel on the defense side, there is also a large scope of literature analyzing issues of prosecutorial misconduct. While there is a legitimate issue surrounding intentional prosecutorial misconduct, some scholars assert that the majority of errors are accidents stemming from overwork and undertraining.
Many think that having fewer prosecutors will benefit defendants. If prosecutors are overburdened, the argument runs, they will drop cases and make plea bargains on terms more favorable to defendants to clear their dockets. This may be the case in some isolated situations, particularly those involving progressive prosecutors. However, researchers hypothesize that the effects of excessive prosecutorial caseloads may tend to harm criminal defendants, particularly those who are less culpable or even innocent.
How Overburdened Prosecutors Can Harm Defendants
- Delays
Excessive prosecutorial caseloads lead to backlogs in court settings, including trial, investigations, and plea bargain offers. Defendants who are unable to post bail can remain incarcerated for additional time as overburdened prosecutors do not have time to focus on their cases. Extensive pretrial detention costs taxpayers and detained individuals. Excessive prosecutorial caseloads may delay trials for months or even years, compelling perhaps innocent defendants to plead guilty to crimes to get out of jail. Dobbie and Yang found that initially released defendants are 10.8 percentage points less likely to plead guilty than similarly situated defendants who were detained.
Excessive caseloads prevent prosecutors from quickly dismissing weak cases. Police make errors and can arrest the wrong person, or arrest with insufficient evidence. It is mutually beneficial for both sides to have a case that will eventually be dismissed to reach resolution as quickly as possible. To state the obvious, it takes time for prosecutors to review evidence, talk with witnesses, do legal research, and speak to their supervisors about whether a case is viable. When prosecutors are overburdened, they will most likely devote their attention to cases with soon-upcoming deadlines. Weak cases with no upcoming due dates may be brushed aside.
- Failure to Consider Alternatives
Overworked prosecutors can overlook alternative modes of handling defendants, such as referral to specialty drug or mental health courts. Instead of looking through personal history to assess a defendant’s needs and motivations, a busy prosecutor may spend a few moments on a case, offer a mentally unstable defendant a plea bargain with a short jail sentence, and move on. Prosecutors have the obligation to assure that defendants receive procedural justice and that guilt is decided on the basis of sufficient evidence and nothing less. By overwhelming prosecutors with excessive caseloads, states risk forcing prosecutors to abandon sufficient investigation or miss evidence that would afford a defendant a lower sentence.
Overburdened prosecutors may lack the time to determine which offenders are more culpable and which are deserving of mercy. As a result, prosecutors may make suboptimal plea bargain offers. Plea bargain calculus is almost entirely discretionary. Prosecutors can consider a host of factors such as the crime, the defendant’s criminal history, and the defendant’s role in the crime. When a prosecutor is busy, they rely more heavily on the police report, which may be missing details on culpability and mitigating factors that further time and care would reveal. When years of incarceration are on the line, prosecutors should have the time to investigate each case sufficiently.
- Brady Violations
Excessive caseloads can lead otherwise ethical prosecutors to commit Brady violations. The Brady rule requires prosecutors to “disclose material, exculpatory information in the government’s possession to the defense.” When prosecutors are overworked or undertrained, they are more prone to miss Brady evidence.
Prosecutors also make Brady errors when they lack the time to coordinate with other players in the criminal justice system. The Brady obligation extends to evidence held by the police, crime laboratories, 911 call centers, and a host of other actors in the criminal justice system. The prosecutor is responsible for making sure they have all the evidence, a time-consuming process. Most jurisdictions do not require Brady evidence to be disclosed when a defendant pleads guilty, creating an incentive for an overwhelmed prosecutor to forgo a discovery process by making a plea bargain.
Brady violations became a household topic in 2024 when movie star Alec Baldwin’s involuntary manslaughter charge, stemming from the fatal discharge of a live gun on a movie set, was dismissed due to a Brady violation. The judge determined that the prosecution had suppressed evidence favorable to the defense and dismissed the case, stating, “[T]he state’s discovery violation has injected a needless, incurable delay into the jury trial.” While Baldwin’s experienced lawyers were able to challenge the prosecution on their error, most Brady violations committed against non-celebrity defendants never come to light. This situation potentially leaves defendants behind bars because the prosecutor’s office was too overburdened and understaffed for its lawyers to recognize their obligations.
Proposed Study and Reform
The upshot of all this is the perhaps-counterintuitive possibility that excessive burdens on prosecutors harm criminal defendants as well as procedural and substantive justice. A randomized control trial (RCT) could provide useful evidence here. The RCT could, for example, take place in a prosecutor’s office facing a demonstrably inappropriate caseload. A private foundation could provide funds to (i) hire additional prosecutors to reduce the caseloads of part of the office, and (ii) hire auditor prosecutors to look for Brady violations or to search for other outcomes. Researchers could facilitate randomization of cases to either higher- or lower-burdened prosecutors and could use data that the audit prosecutors de-identified to measure outcomes such as frequency of Brady errors, time spent per case, type of plea bargain offers, conviction rate, dismissal rate, rate of referral to alternatives to traditional prosecution, or rate of deviations from sentencing guidelines (if applicable). Researchers might also implement surveys to measure procedural justice indicators such as time spent on investigation or average pretrial detention time for someone charged with a felony.
A promising reform is case screening, where charges referred for prosecution receive a preliminary review, which can be used to identify cases for quicker dismissal and improve outcomes for arrestees. The Justice Innovation Lab developed a data-informed approach to improving outcomes through prosecutorial screening. They found that Black arrestees are more likely to have their charges dismissed compared to white arrestees, which suggests a racial disparity in arrest quality. The most common reason for charge dismissal is lack of sufficient evidence. Robust case screening enables prosecutors to dismiss quickly charges that fail to meet evidentiary standards, reducing the negative impact of prolonged pretrial periods, and to minimize the consequences of possible racial bias in policing. The process could be further expedited through AI tools possibly capable of screening cases more efficiently than humans.
With both prosecutors and public defense attorneys facing more work than they can humanly handle, indigent defendants are forced to bear the consequences. Gershowitz and Killinger end their report by stating the need for bolstered resources at both prosecutorial offices and public defenders. Abolitionists legitimately raise concern that bolstering prosecutorial resources further contributes to and legitimizes the carceral state. This blog post does not seek to address that concern. Instead, it suggests that through manageable workloads, training, and case screening, we may be able to minimize the harm prosecutorial mistakes inflict on defendants. Additionally, reform could free prosecutors to pursue cases proactively that address systemic issues instead of struggling to keep up with police referrals. More research could quantify the effects of prosecutor burdens and determine the most effective ways to introduce reforms that ensure defendants and the public Constitutional protections.