The Surprising Downside of a Criminal Justice Trend Reformers Might Think They Love

There is a prosecutor hiring crisis in the United States. Prosecutors are quitting in droves and there are few applicants to replace them. If you believe America and its prosecutors are too punitive, your reaction might be “Great.” Prosecutors drive the criminal justice system, so fewer prosecutors should mean fewer people going to prison, right? Not so fast.

Fewer prosecutors does not translate into fewer defendants being charged. Instead, prosecutorial vacancies lead to existing prosecutors having impossibly high caseloads and making serious errors in those cases. Counterintuitively, huge vacancies in prosecutors’ offices are actually bad news for criminal defendants.

Let’s start with the numbers. As I have documented in a new research paper, more than 15 percent of prosecutor positions are unfilled in Houston and Los Angeles. In Fort Lauderdale and Detroit, the prosecutor vacancy rate exceeds 20 percent. In Alameda, California, 25 percent of prosecutor positions are empty. In Miami, a staggering 33 percent of prosecutor positions are unfilled. The situation is just as bad or worse in many other prosecutors’ offices across the country.

Some of the reasons for the prosecutor vacancies are obvious. Prosecutors get paid less than most other lawyers, and they have to handle huge caseloads (especially with the backlog caused by the COVID pandemic). Most people do not want a job with long hours and low pay when other options are available.

Not only do prosecutors have a lot of cases, but the workload for each case has increased in our digital world. When two or three officers show up at the scene of a crime with their body cameras rolling, they create hours of video footage. Prosecutors must painstakingly review that footage in order fulfill their discovery obligations to the defense.

Prosecutors cannot do that work from the comfort of their homes. After the pandemic, many lawyers want the ability to work remotely. But prosecutors typically have to be in court every day to handle an unrelenting stream of cases. As a result, almost no prosecutor’s office is able to provide a remote work option.

And then there is the George Floyd effect. In the past, law students were split on whether a job as a prosecutor or a career as a public defender was the way to serve justice. Following the murder of George Floyd, however, far fewer law students believe that law enforcement officers are the good guys. Nearly every prosecutor’s office reports that job applications have plummeted over the past few years.

For those concerned about fairness to defendants, the initial reaction to the prosecutor hiring crisis is that it is a good thing. If we “starve the beast,” then fewer prosecutors will bring fewer charges, right? Not so.

Almost every state prosecutor in the United States is elected. And elected prosecutors are in the business of charging criminal offenses, even misdemeanors. Elected prosecutors cannot ignore domestic violence and drunk-driving cases, nor should they. District attorneys who previously favored prosecuting drug offenses are not going to change their minds just to save their employees some work. Instead, elected prosecutors ask their subordinates to “do more with less.”

So what happens when prosecutors have huge caseloads? Busy prosecutors—who are interested in justice and might go the extra mile to determine a defendant’s guilt or innocence—take longer to recognize instances where the defendant is innocent. People thus languish in jail for longer than they should. During that time, innocent defendants may lose their jobs and their ability to pay their rent.

Similarly, many counties around the country have drug courts that take promising defendants out of the regular judicial system and afford them a better opportunity at rehabilitation. Busy prosecutors have less time to screen their cases, though, and they fail to recognize good candidates for drug court. Some defendants thus remain in the regular system and do jail time rather than having a better chance at rehabilitation.

Busy prosecutors also fail to identify less culpable defendants who deserve more generous plea deals. Unfortunately, some highly culpable defendants lie and claim they were minor players in the crime. Early in a case, we rely on prosecutors to figure out who is telling the truth. In an office riddled with vacancies, there is no time for prosecutors to separate out the less culpable defendants. Everyone thus gets the longer “standard” plea bargain offer.

Finally, busy prosecutors unintentionally commit Brady violations by failing to turn over favorable and material evidence to the defendant. Busy prosecutors who are overwhelmed with excessive caseloads will have no time to double-check with police officers that all evidence has been turned over. It is not just malicious prosecutors who commit Brady violations by hiding evidence. Overwhelmed prosecutors make honest mistakes that violate defendants’ constitutional rights.

The prosecutor vacancy crisis is bad news for criminal defendants. Just as reformers should advocate for reasonable salaries and staffing for public defenders’ offices, we should support better salaries and staffing for prosecutors’ offices.