Shortage of prosecutors, judges leads to widespread court backlogs

This story is republished from Stateline. Read the original article.

Still reeling from the COVID-19 pandemic, court systems in many states are working to clear their case backlogs.

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

The pandemic worsened problems that already had caused state and local court delays, legal experts say. The hurdles include insufficient funding, judicial vacancies, lawyer shortages and delays processing digital and physical evidence.

Some state legislators are particularly focused on shortages of prosecutors and judges. In Georgia, New York and Vermont, for example, lawmakers have filed or plan to offer bills that would increase prosecutor pay, boost the number of judges or streamline procedures to reduce the number of cases.

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

The bulk of the backlog in most states and counties are criminal trials. Unlike civil or family law cases, they typically cannot be conducted online because criminal defendants have a constitutional right to face their accusers.

The backlog poses significant challenges for defendants, whose right to a speedy trial can be jeopardized by extended pretrial detention. Those held in jail during pretrial detention may lose jobs and experience housing instability.

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

“[Victims] are very much facing the justice system alone and kind of left to navigate the best they can, so when we start to see court backlogs, that becomes especially an issue because there might be a lack of communication to them about what’s going on,” Williams said in an interview.

As proceedings drag on, there’s also a higher chance that victims may face intimidation or retaliation for coming forward — discouraging them from participating altogether, Williams said.

Too Few Prosecutors

Public defenders and prosecutors are leaving in large numbers because of low salaries and heavy caseloads, with a shortage of applicants to fill the gaps, legal experts said.

In Georgia, the five-year average turnover rate for assistant district attorneys is 25%, coupled with a 10% vacancy rate for state prosecutors, according to data from the Prosecuting Attorneys’ Council of Georgia, which assists and provides training for state prosecutors. In 2021, the state saw its highest turnover rate for a single year, peaking at 43.5%.

Eight of the state’s 49 judicial circuits are facing assistant district attorney vacancy rates exceeding 25%, according to the group’s data.

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

The shortage of state prosecutors comes down to noncompetitive pay, said Coweta County District Attorney Herb Cranford Jr. Prospective assistant district attorneys often opt for positions in urban metro areas, where salaries are higher, leaving rural areas with fewer resources.

Georgia’s decades-old state formula, which determines the number of assistant district attorneys, compounds the issue. The formula limits the state to paying for one assistant district attorney per judge in each judicial circuit. This formula, dating back to at least the 1980s, fails to consider factors such as population growth and caseload size, Skandalakis said.

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

Cranford said that while changing the formula may help reduce the state’s backlog, addressing pay would have more of an impact.

“We can add as many prosecutors as we want. If we don’t address the competitive pay problem, it’s not going to matter because we can’t even fill the current positions we have,” Cranford said.

Georgia Republican state Sen. Randy Robertson said he’s open to exploring budgetary options that would offer better pay and benefits to state prosecutors while also ensuring “good return on the taxpayers’ investment.” Robertson said he also plans to address the state’s assistant district attorney formula.

“We absolutely need to look at the formula and make sure that we’re giving the courts that need it as much help as possible, and at the same time, making sure that some of the circuits aren’t overloaded,” Robertson said.

Judge Vacancies

In both New York and Vermont, judge vacancies are chief among the reasons for the states’ court backlogs.

In September, the New York City Bar Association released a report calling on the state legislature to work toward repealing the state’s constitutionally prescribed cap on the number of judges that can be elected to the state’s supreme courts. The state has one supreme court per county, totaling 62 across the state. The cap, originally enacted in 1846, limits the number of state supreme court judges to one for every 50,000 residents of a judicial district.

New York state has nearly 120,000 pending cases, according to the most recent court statistics available. In 2022, the state’s court system resolved more than 2.1 million cases, according to its annual report.

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

Judges on other lower courts are tasked with stepping in when there are vacancies on state supreme courts, even if they were not initially elected for such roles, said Elizabeth Kocienda, the New York City Bar Association’s director of advocacy.

This practice leads to backlogs in criminal, civil and family law cases, as lower court judges must handle cases outside their usual purview. And this routine reassignment contributes to vacancies on the lower courts, exacerbating the existing backlog, Kocienda said.

“You end up with this mishmash of judges that are sitting on the supreme court with varying levels of experience, varying levels of all different practice areas,” Kocienda said. “They weren’t necessarily intended for that court, so it just creates a lot of downstream problems in other areas.”

A bill to increase the number of state supreme court judges is already in committee in both the New York Assembly and the Senate.

In December, Democratic Gov. Kathy Hochul signed a law to increase the number of state supreme court judges in three districts. The law also raises the number of judges serving on other courts, including family courts in New York City.

Hochul also has expressed support for repealing the cap on the number of supreme court judges in the state, including a proposal for the measure in her State of the State agenda released earlier this month.

The Vermont Judiciary, which encompasses the state’s entire court system, faced judge shortages at different times over the past year, leading to the reassignment of judges from their regular dockets to cover cases in other areas. This reshuffling prevented them from presiding over their own cases simultaneously, resulting in a reduction in scheduled hearings and a slowdown in case processing across both courts, according to Teri Corsones, Vermont’s court administrator.

As of Jan. 16, there were over 35,500 pending cases statewide, according to data from the Vermont Judiciary. About 42%, or 15,294 of those pending cases, are criminal cases. That’s double the amount of pending criminal cases pre-pandemic.

While five vacant judge positions were filled in November, the state still has one judicial vacancy and one magistrate vacancy.

“We’ve been able to make slow but steady progress in addressing the backlog since resuming fully open courts, but greater progress has been hampered by the number of judge vacancies,” Corsones wrote in an email to Stateline.

Vermont’s pretrial detainee population increased about 10% between 2019 and 2023, which means hundreds of people have languished in the state’s correctional facilities without being convicted of a crime, according to Nick Deml, the commissioner of the Vermont Department of Corrections.

“It’s gonna take multiple lines of effort, attacking different parts of this problem,” Deml said. “There’s not going to be one silver bullet that solves the backlog.”

Democratic state Rep. William Notte introduced a bill that would combine a person’s multiple misdemeanor theft charges into a single felony charge, which aims to reduce the time spent in court.

Notte, who sits on the House Judiciary Committee, said the committee also plans to explore other measures designed to reduce the state’s backlog, such as expanding drug court statewide and streamlining the process for presenting judicial nominees to the governor.

The Vermont Judiciary asked the legislature to fund two additional judge positions and 10 judicial assistants, Corsones wrote in an email. The judiciary is also “actively exploring” a funding request for a third additional judge position.