Regulating Mass Prosecution

Abstract

Efforts to address our nation’s criminal justice crisis have hit a standstill; legislative solutions have proven inadequate and increased funding for public defenders is politically impractical. Virtually everyone agrees that there is a problem: we incarcerate more people than any other developed nation and that imposes a significant cost on society. The conventional solutions to this crisis focus on the legislative or public defense side of the equation – urging decriminalization of certain behaviors by state legislatures and increased funding for indigent defenders. These proposed solutions are important but, alone, insufficient, for reasons that are all too predictable: a lack of political will to do right by indigent defendants.

In this paper, I advance a solution that is at the same time novel and achievable. My proposed solution is novel because it focuses on an institutional actor that has, to this point, received comparatively little attention in the debates over mass incarceration – the prosecutor. It is achievable because it does not require new legislation that would, in turn, depend upon political support that is unlikely to materialize. Instead, the solution is already a part of our legal backdrop: prosecutors should be required to comply with the same ethical rules that govern all other lawyers. And those rules, I argue, are violated when prosecutors exercise their charging discretion in ways that contribute to massive public defender caseloads.

Prosecutorial discretion allows the prosecutor, with few limitations, to choose which of many potential criminal charges she will pursue. This means that prosecutorial discretion gives prosecutors a degree of control over the size and scope of the criminal court docket that other criminal court actors do not possess. If we seek a solution to our nation’s problem of mass incarceration, then we must recognize that public defenders with massive caseloads compromise that goal. This Article conveys that public defender overload, and the mass incarceration to which it contributes, is not simply a constitutional crisis limited to individual rights for individual defendants. Instead, it defines the problem as an ethical one, with central concerns about how the legal profession is situated in the criminal justice domain.

Keywords: Criminal Procedure, Criminal Law, Legal Ethics, and Professional Responsibility