Lack of prosecutors and judges leads to widespread backlog

Courts in many states are still grappling with the effects of the COVID-19 pandemic and are working to clear the backlog of pending cases.

Some court systems have moved cases faster through virtual trials, court data dashboards and online jury selection. In other states, lawmakers are stepping in.

The pandemic has exacerbated problems that were already causing delays in state and local courts, legal experts say. Hurdles include inadequate funding, vacant judgeships, lawyer shortages and delays in processing digital and physical evidence.

The shortage of prosecutors and judges is a particular concern for some state legislators. In Georgia, New York and Vermont, for example, lawmakers have introduced or plan to propose bills to raise prosecutors’ salaries, augment the number of judges or streamline procedures to reduce caseloads.

“The way our courts process cases is much more complex today than it used to be, and the pandemic is just another layer of complexity,” said Brittany Kauffman, CEO of the Institute for the Advancement of the American Legal System, an independent research center at the University of Denver.

Criminal cases account for the largest backlog in most states and districts. Unlike civil or family law cases, they generally cannot be heard online because defendants have a constitutional right to face their accusers.

The backlog poses a major challenge for defendants, whose right to a speedy trial may be jeopardised by prolonged pre-trial detention. Those in prison during pre-trial detention may lose their jobs and face housing problems.

And for crime victims, lengthy court proceedings can make navigating the already intricate justice system even more complex, says Renée Williams, executive director of the National Center for Victims of Crime.

“[Victims] “Most of them are completely alone in the justice system and have to navigate the best they can. So when there are backlogs in the courts, that becomes particularly problematic because then they may not be informed enough about what is going on,” Williams said in an interview.

As a process drags on, victims are more likely to face intimidation or retaliation if they identify themselves – and be discouraged from participating altogether, Williams says.

Too few prosecutors

Because of low salaries and high caseloads, public defenders and prosecutors are leaving the profession in huge numbers, and there is a shortage of applicants to fill the gaps, legal experts say.

In Georgia, the average turnover rate for assistant district attorneys over five years is 25%, while the vacancy rate for prosecutors is 10%, according to data from the Prosecuting Attorneys’ Council of Georgia, which supports and trains prosecutors. In 2021, the state recorded its highest turnover rate of any year, peaking at 43.5%.

According to the group’s data, the vacancy rate for assistant district attorneys in eight of the state’s 49 judicial districts is above 25 percent.

“Something has to be done because if we don’t find new prosecutors and public defenders, the system will grind to a halt,” said Peter Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia. “It’s already slow enough.”

The shortage of prosecutors is due to uncompetitive pay, said Coweta County District Attorney Herb Cranford Jr. Aspiring assistant district attorneys often choose positions in urban areas where salaries are higher, leaving rural areas with fewer resources.

Georgia’s Decades-old state formulathat determines the number of assistant prosecutors exacerbates the problem. The formula limits the state to paying one assistant prosecutor per judge in each judicial district. That formula, which dates to at least the 1980s, does not take into account factors such as population growth and caseload, Skandalakis said.

“The most populated jurisdiction is treated the same as the least populated. That’s just not a good way to do business,” he said.

Cranford said that while changing the formula could support reduce the state’s backlog, changing the salaries would have a larger impact.

“We can hire as many prosecutors as we want. If we don’t address the issue of competitive pay, it’s not going to work because we won’t even be able to fill the current positions,” Cranford said.

Georgia Republican state Sen. Randy Robertson said he is open to exploring budget options that would provide better salaries and benefits to prosecutors while ensuring “a good return on taxpayers’ investment.” Robertson said he also wants to look at the formula for the state’s assistant district attorneys.

“We absolutely need to look at the formula and make sure we are giving as much help as possible to the courts that need it while also making sure some jurisdictions are not overwhelmed,” Robertson said.

Open judge positions

In both New York and Vermont, judicial vacancies are one of the main reasons for the backlog in those states’ courts.

In September, the New York Bar Association published a report called on the state legislature to work to repeal the constitutionally mandated cap on the number of judges who can be elected to the state’s supreme courts. The state has one supreme court per district, for a total of 62 statewide. The cap, originally enacted in 1846, limits the number of judges on the state’s supreme courts to one for every 50,000 residents of a judicial district.

In New York State, according to the latest data, there are nearly 120,000 cases pending. Court statistics available. In 2022, the state’s court system resolved more than 2.1 million cases, according to Annual report.

The New York State Unified Court System did not respond to several requests for comment on the state’s backlog or efforts to reduce it.

Judges from other lower courts are tasked with filling vacancies on state supreme courts, even if they were not originally elected to such positions, says Elizabeth Kocienda, director of advocacy for the New York Bar Association.

This practice creates backlogs in criminal, civil and family law cases because lower court judges must handle cases outside their usual jurisdiction. And this routine reassignment contributes to vacancies in the lower courts and exacerbates the existing backlog, Kocienda said.

“You end up with a mishmash of Supreme Court justices with different levels of experience and different levels of expertise in all sorts of areas,” Kocienda said. “They weren’t necessarily meant to be on this court, so it creates a lot of problems in other areas.”

A The invoice The proposal to augment the number of judges on the state Supreme Court is already in committee in both the New York Assembly and the Senate.

In December, Democratic Governor Kathy Hochul signed a Law to augment the number of judges on the state Supreme Court in three districts. The law also increases the number of judges in other courts, including family courts in New York City.

Hochul has also advocated lifting the cap on the number of judges on the state Supreme Court, including a Suggestion for the measure in its State of the State agenda published earlier this month.

Vermont’s judiciary, which encompasses the state’s entire court system, has struggled with judge shortages at various times over the past year, resulting in judges being pulled from their regular jurisdictions to take on cases in other areas. That restructuring prevented them from hearing their own cases at the same time, leading to a reduction in scheduled hearings and a slowdown in case processing in both courts, according to Teri Corsones, Vermont’s court administrator.

According to the Vermont Attorney General’s Office, there were more than 35,500 cases pending statewide as of January 16. About 42%, or 15,294, of those pending cases are criminal cases, double the pre-pandemic number.

While five vacant judge positions were filled in November, there are still one judge and one justice of the peace position vacant in the state.

“Since the courts reopened, we have made slow but steady progress in clearing the backlog, but the number of vacant judges is hindering greater progress,” Corsones wrote in an email to Stateline.

According to Nick Deml, director of the Vermont Department of Corrections, the number of pretrial inmates in Vermont increased by about 10% between 2019 and 2023. That means hundreds of people are languishing in the state’s correctional facilities without being convicted of a crime.

“It will require multiple efforts that address different parts of the problem,” said Deml. “There will be no panacea that will resolve the backlog.”

Democratic Representative William Notte introduced a bill that would consolidate multiple theft charges into a single felony charge, with the goal of reducing the length of trials.

Notte, who serves on the House Judiciary Committee, said the committee also plans to consider other measures to reduce the state’s backlog, including expanding drug courts statewide and streamlining the process for submitting candidates for judicial positions to the governor.

The Vermont Judiciary has asked the Legislature to fund two additional judgeships and 10 judicial assistants, Corsones wrote in an email. The Judiciary is also “actively reviewing” a funding request for a third additional judgeship.