CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, April 15, 2010

Gershowitz and Killinger on Excessive Prosecution

Gershowitz adam Adam M. Gershowitz and Laura Killinger have posted The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants on SSRN. Here is the abstract:

Although dozens of scholars have documented the appalling underfunding of indigent defense in the United States, virtually no attention has been paid to the overburdening of prosecutors. In many large jurisdictions, prosecutors handle caseloads that are as large as those handled by public defenders. Counter-intuitively, when prosecutors shoulder excessive caseloads, it is criminal defendants who are harmed. Because overburdened prosecutors do not have sufficient time and resources for their cases, they fail to identify less culpable defendants who are deserving of more lenient plea bargains. Prosecutors also lack the time to determine which defendants should be transferred to specialty drug courts where they have a better chance at rehabilitation. Overwhelmed prosecutors commit inadvertent (though still unconstitutional) misconduct by failing to identify and disclose favorable evidence that defendants are legally entitled to receive. And excessive prosecutorial caseloads lead to the conviction of innocent defendants because enormous trial delays encourage defendants to plead guilty in exchange for sentences of time-served and an immediate release from jail. This article documents the excessive caseloads of prosecutors’ offices around the country, and it demonstrates how the overburdening of prosecutors harms criminal defendants, victims, and the public at large.

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