In a forthcoming article, entitled "The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants," Adam Gershowitz and Laura Killinger identify and explore an almost unconsidered problem - excessive prosecutorial caseloads. In this response, I flag two significant shortcomings with their otherwise valuable contribution. First, the authors overstate the perceived problem. Specifically, their data do not demonstrate either endemic excessive prosecutorial caseloads or consequent harm to defendants’ interests. Second, the authors may miss the root problem altogether. Specifically, they fail to consider that excessive prosecutorial caseloads are partially a product of prosecutors’ inadequate exercise of charging discretion. On this reading, the caseload burden is more symptom than pathology, and the authors’ proposed solution - to better fund prosecution offices - may serve only to generate still higher prosecutorial caseloads.
Josh Bowers, Physician, Heal Thyself: Discretion and the Problem of Excessive Prosecutorial Caseloads, A Response to Adam Gershowitz and Laura Killinger, 106 Northwestern University Law Review Colloquy, 143–155 (2011).