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| John Choi |
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| Audrey Cromwell |
The survey of prosecutors, conducted by Lafayette College, in partnership with the Association of Prosecuting Attorneys — of which we're both members — found, via a mix of complete and partially complete answers from 14 prosecutors' offices,[2] that there has been an increase of more than 5,500 cases per office, a 62% increase since 2020, when courts temporarily shut down or shifted online during the COVID-19 pandemic.
Prosecutors said they were not able to adequately address their case backlogs due to lack of funding to hire and retain prosecutors, decreased morale, and increased difficulty hiring prosecutors.
Roughly two-thirds of offices that indicated staffing reduction or retention issues reported that these issues continue to affect backlogs. Nearly all offices that indicated morale was an issue, and all offices that indicated funding was an issue, reported that these factors continue to affect their case backlogs.
Mounting case backlogs mean longer case processing times, reduced criminal justice services, a greater risk of decision-making errors, a reduction in procedural fairness practices, career burnout and higher employee turnover.
Because this harms every aspect of the criminal legal system, including those who encounter it — such as victims, witnesses and the accused — excessive case backlogs are a serious challenge not only to prosecutors' offices nationwide, but to the functioning of the entire criminal legal system.
Currently, prosecutors have hundreds of felony cases waiting to be reviewed for prosecution. This causes victim, witness and defendant frustration, overcrowded jails, and increased costs to law enforcement agencies, the judicial system and taxpayers, which leads to further erosion of public trust. It is unacceptable.
It's also important to note that these high caseloads may not adequately reflect the scope of prosecutor workloads. Policy, procedural and technological changes over the last 20 years have increased the labor hours and obligations associated with most cases. At the same time, new technologies, like body cameras and other digital recordings, have ballooned the amount of discovery evidence and the time required for prosecutors to review it.
This survey aligned with previous research[3] showing that prosecutor office staffing and pay is not necessarily commensurate with jurisdiction size or caseloads, and that some offices have caseloads well in excess of their peers and above the consensus maximum numbers of cases set by the National Advisory Commission on Criminal Justice Standards and Goals.[4]
This problem is only getting worse. So, what can be done?
First, prosecutors' offices need increased funding to hire, train and retain their attorneys and staff. There exists a significant pay disparity between the civil and criminal bars, and high student loan debt among attorneys, combined with increased costs of living, all serve to disincentivize a career in prosecution.
Additionally, all the stressors associated with unsustainably high caseloads have led to exorbitant attrition in the profession; experienced prosecutors are leaving in droves.[5] The experience gap among new hires is drastic, as less experienced prosecutors are inheriting complex, nuanced caseloads without the training and proper experience needed to ensure just outcomes in settlement negotiations and trial.
Many prosecutors' offices are funded by local, state and federal dollars, as well as grants. Each funding source needs to become better aware of this issue and stand ready to assist, in the interest of our shared public safety goals.
Second, jurisdictions should examine ways to triage low-level, nonviolent offenses, such that violent and person-involved crimes can be prioritized, as this will assist with alleviating the pressure points associated with backlog. For example, if done correctly, diversion and deflection programs can bolster public safety.[6]
Lastly, the success of the criminal justice system generally depends on all stakeholders working together to ensure constitutional rights and public safety are preserved. Interdisciplinary cooperation is key to alleviating case backlog issues.
Prosecutors, public defenders, the courts and law enforcement must work together, increasing communication efforts and co-designing strategies to eliminate redundancies, case flow inefficiencies, and opportunities for timely, fair case resolution.
For example, jurisdictions can examine their case processing and resolution timelines. The parties can agree on a timeline to accomplish certain events in the life of a case, which may only be exceeded under exceptional circumstances.
As prosecutors, our goal is to ensure safer communities through a more just and equitable legal system. To do that, it is critical to reduce case backlogs by addressing their underlying causes. Justice demands it.
John J. Choi is the county attorney for Ramsey County, Minnesota.
Audrey Cromwell is the county attorney for Gallatin County, Montana.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.apainc.org/wp-content/uploads/2024/01/APA-Nationwide-Case-Backlogs-Findings-Report-FINAL.pdf.
[2] https://www.apainc.org/wp-content/uploads/2024/01/APA-Nationwide-Case-Backlogs-Findings-Report-FINAL.pdf.
[3] https://www.apainc.org/wp-content/uploads/2021/11/Lafayette-APA-Prosecutor-Workplace-Study-1.pdf.
[4] https://www.ojp.gov/ncjrs/virtual-library/abstracts/courts-report-national-advisory-commission-criminal-justice.
[5] Weiss, D. C. (2024, January 26). Prosecutors are 'quitting in droves,' and it's bad news for defendants, law prof says. Retrieved February 28, 2024, from ABA Journal: https://www.abajournal.com/news/article/prosecutors-are-quitting-in-droves-and-its-bad-news-for-defendants-law-prof-says.
[6] Merrefield, C. (2023, February 14). Choosing not to prosecute low-level crimes may reduce future crime, research finds. Retrieved Feburary 28, 2024, from The Journalist's Resource: https://journalistsresource.org/criminal-justice/prosecution-choices-future-crime/.