Physician, Heal Thyself: Discretion and the Problem of Excessive Prosecutorial Caseloads, a Response to Adam Gershowitz and Laura Killinger

18 Pages Posted: 12 Jun 2011  

Josh Bowers

University of Virginia School of Law

Date Written: June 9, 2011

Abstract

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.

Keywords: Prosecutorial discretion, charging discretion, caseloads, public defenders, prosecutors

JEL Classification: K14, K40, K41, K42

Suggested Citation

Bowers, Josh, Physician, Heal Thyself: Discretion and the Problem of Excessive Prosecutorial Caseloads, a Response to Adam Gershowitz and Laura Killinger (June 9, 2011). Northwestern University Law Review Colloquy, Forthcoming. Available at SSRN: https://ssrn.com/abstract=1861490

Josh Bowers (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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