On increasing prosecutor caseloads in an era of crime decline

On Twitter, TDCAA complained about Grits' observation in this post that, as the number of crimes with victims declined over recent years, police and prosecutors have shifted their focus to areas where they may maintain or even increase caseloads despite more than two decades of dropping crime.

The association is right that caseloads have increased. Grits has discussed before how the number of criminal convictions statewide continued to rise long after crime and arrests began to drop. In his book, Locked In, John Pfaff demonstrated the same trend occurred nationwide from the mid-90s to the late aughts, with the number of felony-charges-per-arrest over that period rising from one-in-three to two-in-three. So, even as crime and arrests declined, the number of convictions continued to rise.

On the ground, Grits sees this trend playing out as law enforcement shifting resources to activities that aren't particularly public-safety oriented and which certainly aren't responding to people's victimization.

For example, the Ector County Attorney authored a blog post in February detailing his 2017 caseload. (County Attorneys in Texas prosecute all misdemeanor cases.) The top two offenses prosecuted by his office were marijuana possession (19% of cases) and Driving With Invalid License (17%). At 16% of the caseload, DWI enforcement came in third.

I don't want to pick on Mr. Gallivan because his numbers are pretty typical - he just happened to have put his caseload data out there. But 36 percent of his office's caseload is either prosecuting people for paperwork violations (DWLI is about license status, not safety), or churning through low-level arrests for a nonviolent activity (user-level pot possession) which would be legal in nine states and the nation's capitol. (In related news: A Quinnipac poll out this week found that nearly 2/3 of Texas voters support legalizing recreational pot possession.)

These are the big growth areas in prosecutor caseloads. Similarly in the Travis County data that originally inspired the prosecutors' complaint, possession-level drug arrests accounted for nearly all of the increase in caseload; otherwise, jail bookings had gone down.

So when crimes with victims diminish, these sorts of evergreen offenses are where the system shifts its focus.

None of this is raised to blame prosecutors - the Legislature creates and defines crimes, not them, and often they are reacting to whom police choose to arrest. Rather, my point is to raise the question: Is that what we want the justice system to be doing? When crime goes down, is it a good use of resources to criminalize paperwork violations or prosecute pot smokers to justify high staffing levels? Would taxpayers be better off if Mr. Gallivan prosecuted all those DWLI and pot cases, or if he eliminated 36 percent of his staff and provided voters with tax relief (with additional relief coming from lower jail and court costs, etc.)?

These seldom-discussed questions are worth asking, even if the prosecutors' association takes offense. They're not the only ones to blame for a distorted and dysfunctional system, but right-sizing it will require significant changes to how they perceive and perform their duties.