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Irene Joe, Regulating Mass Prosecution, 53 U.C. Davis L. Rev. 1175 (2020).

In Regulating Mass Prosecution, Irene Joe seeks to shift the framework for assessing the causes of and solutions to mass incarceration, by spotlighting the role of prosecutors and their ethical duties to maintain fairness, loyalty, and competence. The core thrust of Joe’s argument is that prosecutors should be understood to have ethical limits on the pursuit of charges against defendants based on the systemic impact of charging decisions in producing public defender case overload. Moving beyond well-rehearsed arguments about the prosecutor’s duty to seek “justice,” Joe adopts a systematic ethical approach, focusing on the “role that the prosecutor plays in creating” the caseload crisis (P. 1183). She thereby makes a novel link between the ethics of prosecution and that of public defense, illuminating the “cumulative effect that . . . discretionary charging decisions have on the public defender’s ability to provide ethical and professional representation.” (P. 1184.) Having made this link, she then turns to the ethics rules as “a sword and a shield for reformist prosecutors to use in addressing the caseload crisis in indigent defense.” (P. 1184.)

In her ethics analysis, Joe is mindful of the deeply complex nature of the prosecutor’s charging decision: an exercise of discretion in which the prosecutor determines to pursue charges supported by probable cause. As Joe points out, in making this decision, a prosecutor is generally motivated to act by the duty to advance the interests of justice, but other factors sometimes creep in, such as implicit bias or the prosecutor’s self-interest in achieving a high “win” rate or currying favor with the judge. Where Joe fundamentally departs from convention is by showing how individual charging decisions permit prosecutors to shape “the size and scope of the criminal justice system,” thereby placing the public defender in a “reactive” posture, unable to adequately control his or her caseload—and thus undermining defendants’ access to justice. Joe recognizes, of course, that prosecutors do not deal exclusively with public defenders, whose work focuses on the representation of indigent defendants constitutionally entitled to counsel. What Joe wants us to appreciate is that prosecutorial discretion, by affecting the aggregate number of cases in the system, has particular impacts on the caseloads of public defenders, who must take cases assigned to them in this expanding system and are heavily overburdened.1

Most significantly, Joe argues that these problems create ethical concerns for the prosecutor: namely, that by bringing charges, prosecutors are contributing to the ethics violations of public defenders. In addition, Joe suggests that prosecutors may also violate a host of other rules, including those requiring fairness to opposing counsel (Rule 3.4), since a “charge practice that overwhelms the public defender risks violating this rule and the rationale that lawyers should not seek every advantage regardless of the impact on the opposing counsel.” (P. 1215.) This is no trifling argument. Rather, it is a significant reconceptualization of prosecutorial role, pushing for creative interpretations of the rules to make them do more work for systemic reform. In this vein, Joe pushes the rules even further, suggesting that the prosecutor’s own self-interest in winning cases could produce a loyalty violation: “If a prosecutor knows that charging a high number of cases will render a public defender little more than a plea machine, then the charging practice could be the result of self-interest as guilty pleas result in convictions.” (P. 1221.)

This is an important scholarly turn, in which Joe seeks to take seriously the fact that all of the rules apply to prosecutors, and to use that fact to force prosecutors to look at the degree to which their charging practice produces overload. To define what overload means, Joe suggests using as a benchmark the ABA’s existing metrics for determining appropriate caseloads, asserting that if charging decisions force public defenders to exceeding that level, prosecutors have a duty to stop. Her most provocative argument is that there is “a very real possibility that, under Model Rule 8.4, a prosecutor may be culpable for knowingly assisting or inducing public defenders to commit rules violations.” (P. 1232.) Mind you, this is a novel, dare I say, radical interpretation, which has not been entertained by bar discipline committees or courts. But that is precisely what makes it so interesting and powerful.

This piece, which seeks to shift the responsibility for dealing with defender overload (at least in part) out of the political arena, raises significant questions that demand serious attention. For instance, how would this new approach to prosecutor ethics be operationalized? Since nearly all public defenders are overloaded, would Joe’s proposal require every charging decision to be scrutinized by bar disciplinary committees in order to assess whether and how they contribute to defender case overload? In developing Joe’s proposal, it is important to consider how charging decisions would be monitored in a comprehensive manner.

Joe’s proposal also raises thorny questions about the relationship between the prosecutor’s ethical violations and those of public defenders themselves. Specifically, Joe presumes that the prosecutor is vulnerable to disciplinary charges precisely because public defenders are committing their own rule violations as a result of overload. This leads to one to wonder: If bars were going to go after prosecutors under the theory that Joe prescribes, would they also have to start disciplining the public defenders as well?

There are other important, unresolved ethics issues. If prosecutors decided against bringing charges in order to avoid contributing to case overload, could they be vulnerable to ethics violations for not pursuing charges against defendants who deserved to be prosecuted? Joe’s overarching response to these operational issues is to suggest that prosecutors realign charging to target the most serious crimes and promote community interests. (P. 1241.) This, she suggests, would reduce the overall footprint of prosecutors’ offices in ways that would ameliorate the overload problem and permit defenders to provide the effective assistance of counsel to which they are professionally and constitutionally bound.

At bottom, in this moment of political uprising and calls for transformative change, Joe’s analysis provides a clarion call for major reform. With the no indictments issued in the Breonna Taylor case, prosecutorial discretion is back at the center of debate about racial justice in the criminal system and Joe’s article reminds us that unchecked discretion may continue to produce significant harms to the subjects of criminal prosecution who are disproportionately low-income and people of color. Significantly, Joe is asking bar associations to think of their rule enforcement in structural terms and push forward an agenda that addresses massive, ongoing unfairness in the criminal justice system. Of course, her preferred solution would be a reduction in the footprint of policing and prosecution, and adequate funding for defenders to provide effective assistance of course. However, if legislatures around the country will not devote more money to adequately fund defender officers, she asks the profession itself to step into a vanguard role. Of course, this may itself be a provocation: the threat of ethics prosecution of prosecutors may spur defender funding to avoid that outcome. In that sense, the central contribution is to open up a debate around how prosecutors might be responsible for defender ethics violations in ways that may jumpstart discussion within the bar toward a more collective response. In this sense, the article offers not simply a novel ethics diagnosis and prescription. It asks all lawyers to contribute to criminal justice reform with anti-racist consequences.

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  1. See, e.g., Richard A. Oppel, Jr. & Jugal K. Patel, One Lawyer, 194 Felony Cases, and No Time, N.Y. Times, Jan. 31, 2019; see also Alexa Van Brunt, Poor People Rely on Public Defenders Who are Too Overworked to Defend Them, Guardian, June 17, 2015.
Cite as: Scott Cummings, Are Prosecutors Ethically Responsible for Producing Defender Overload?, JOTWELL (November 25, 2020) (reviewing Irene Joe, Regulating Mass Prosecution, 53 U.C. Davis L. Rev. 1175 (2020)),