Why Prosecutorial Overload Can Spark More Problems

By Emma Cueto | August 18, 2019, 8:02 PM EDT

Prosecutors have huge power, and when they are overworked and dealing with high caseloads, those problems can have a ripple effect throughout the criminal justice system.

According to a report released on Aug. 13 by the Center for Justice Research, that's the dilemma facing Harris County, Texas, which is home to Houston, the fourth largest city in the United States.

While the report does not identify specific examples of the system in county breaking down, it notes that high caseloads for prosecutors can result in everything from delayed trials to prosecutorial error.

"The prosecutor is perhaps the most powerful entity in our criminal justice system," said Howard Henderson, head of the Center for Justice Research, which put out the report. "To not know ... what their caseload should be has significant ramifications on thousands of black, brown, poor, and uneducated people who are being processed through our system."

Research suggests that cities should have about one prosecutor for every 10,000 residents, but Harris County falls well short that benchmark, with just 329 prosecutors for a county of over 4 million people. This puts the county's ratio far below that of the country's other most populous counties.

The prosecutors in Harris County also have higher felony caseloads than prosecutors in counties with similar population, and the district attorney's office receives far less funding per capita than places like Chicago's Cook County or Maricopa County in Arizona, according to the report.

However, overburdened prosecutors is not a problem unique to Houston.

"It's very common," said Duffie Stone, president of the National Association of District Attorneys. "A lot of counties that I have seen equate public safety exclusively with the sheriff's office, and they leave out the component that prosecutors ... are part of the public safety equation. They are more willing to put money into a county sheriff's department."

As noted in the report on Harris County, when prosecutors are overworked and overburdened, they make mistakes — which can have major implications for the rights of defendants, though the report does not speculate whether this has happened in Harris County. It can additionally extend the time before a case goes to trial and increase the pressure on prosecutors to reach plea deals, according to research cited in the report.

It can also lead to burnout and high turnover.

According to reports in local media outlets, 140 prosecutors left the Harris County district attorney's office between the beginning of 2017 and April 2019, in an office that typically has about 330 prosecutors. Reports attribute some of the turnover to low pay, fallout from Hurricane Harvey in 2017, and the new, reform-minded district attorney, Kim Ogg.

This type of turnover can compound understaffing problems, according to Stone.

Prosecutors need a lot of time to evaluate cases that land on their desk and to prepare cases for trial, he said. When prosecutors are inexperienced, those things take even longer.

"When we talk about resources, we talk about money, but really what the money is providing is time," he said. "An experienced prosecutor can make those assessments quicker."

When prosecutors have more cases than they have time for, Stone said, they either rush or get backlogged. He said the number of felony cases per prosecutor in Harris County — 116, according to the report — is higher than the 94 felony cases cited in a 2007 report from the Bureau of Justice Statistics that an average prosecutor is able to complete in a year.

Backlogs prevent speedy trials and make cases harder to prosecute once they eventually do make their way to court. Evidence can degrade, and witnesses can forget details, move away or die, Stone said.

At the Center for Justice Research, Henderson told Law360 that he hopes the report will allow Ogg and the Harris County commissioners to reopen the conversation about the needs of the county's prosecutors.

Ogg recently requested $20 million in additional funding to hire 100 more prosecutors and work through the county's backlog, which Ogg said was about 40,000 cases. The request drew criticism from some in the community, who argued that the money would be better spent on diversion programs rather than prosecutions.

The request was voted down by the county commissioners earlier this year.

Ogg's office did not respond to a request for comment.

Henderson said he thinks the county needs to take a harder look at how to calculate the needs of the district attorney's office, noting that even the 1-to-10,000 ratio of prosecutors to population is not a universally accepted metric and doesn't always account for local differences.

A full assessment of the local needs in Harris County would require a close examination of prosecutor caseloads, including the types of cases they are handling, he said. It would also require the county to consider what prosecutors' role might be in implementing diversion programs and recommending people for them.

"We felt it was unacceptable not to have a conversation about what prosecutor needs are and how you identify what staffing levels should look like," he said. "We need to come to come together to figure this out."

--Editing by Brian Baresch.

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