By Tom Jarvis
Much has been said about the public defender and conflict counsel shortage, but another piece of the puzzle is the prosecution. At first glance, you might not think the indigent defense crisis has direct implications for prosecutors, but the reality is that it affects them and the victims they represent just as much as the defense attorneys, defendants, and courts.
Prosecutors are sometimes perceived as primarily focused on securing convictions rather than seeking justice, but the truth is more complex. Prosecutors rely on a functioning defense system just as much as anyone. A fair system requires skilled, ethical professionals on both sides. When public defenders are overburdened and under-resourced, that balance breaks down. Cases take longer to resolve, the risk of wrongful convictions increases, and prosecutors are left navigating a system where achieving justice becomes more difficult.
As any prosecutor will tell you, their role isn’t just about winning cases – it’s about ensuring fair outcomes. But when indigent defense is in crisis, that mission becomes harder to fulfill. Overloaded public defenders may not have the time or resources to fully investigate cases, negotiate effectively, or challenge weak evidence. That weakens the adversarial process and undermines justice.
The indigent defense crisis isn’t just a defense problem – it’s a prosecution problem, too.
The Ripple Effect
“It’s harder for us to get cases resolved more quickly,” Grafton County Attorney Marcie Hornick, a former longtime public defender, says of the crisis. “We try to stay on top of the cases brought to us because we don’t want victims to struggle or justice to be delayed. But with this shortage, delays can happen if public defenders can’t keep up with the comings and goings of their clients or other court assignments.”
Hornick is one of several prosecutors across the state who express concern that the persistent shortage of defense attorneys has created a ripple effect throughout the criminal justice system – producing a bottleneck that affects not only defendants but also victims, witnesses, law enforcement officers, and prosecutors themselves.
“There are many costs of maintaining open cases as they slowly crawl through the system,” says Merrimack County Attorney Paul Halvorsen. “Prosecutors and support staff have to monitor compliance with bail, new charges on a defendant already awaiting trial on an older case, and victim/witness communication. These may appear minor but in total have a great impact.”
Shared Struggles
As the pressures on defense attorneys continue to mount, prosecutors are facing similar challenges. These shared struggles strain the entire justice system, making it harder for all parties to achieve fair and timely resolutions. Manchester City Solicitor Emily Gray Rice reflects on how these challenges are not isolated but deeply interconnected.
“Prosecutors and defenders work together in courtrooms all over the state – all day, every day,” she says. “A lot of the pressures that are affecting indigent defense also affect us concomitantly. For example, we face the same challenges with the rewind of Felonies First and the pandemic, and face the same problems with recruitment, retention, career satisfaction, and other issues that have been discussed at length in this series. While we may not be on the same side of the cases, we are essentially two sides of the same coin.”
Strafford County Attorney Emily Garod echoes the sentiment, saying the challenges of the prosecution caused by the indigent defense crisis mirror those of the New Hampshire Public Defender.
“Like theirs, our jobs are very intensive, and a lot of people don’t stay in them for very long,” she says. “We are public service employees, so you’re never going to get rich in this position, and the job is a lot of pressure. A lot of these cases are high stakes. A simple mistake can mean a devastating impact.”
Like public defenders, prosecutors’ offices grapple with staffing shortages, exacerbated by high attrition rates and lack of new recruits.
“We have had a shortage of prosecutors for a long time,” Garod says. “There is almost always a Bar News ad for a prosecutor at any given time in the state. We always have high caseloads, but we can’t just refuse a case if a felony comes in from one of our police departments. We can’t decline to prosecute because everyone is too busy.”
Rice says the volume of cases on both sides makes finding the time to communicate with each other very difficult but emphasizes that the real strain comes from not having enough time to adequately prepare their cases.
“Lawyers take great pride in being prepared, and you are diminishing career satisfaction when people are continually in a position where they don’t feel they have sufficient time to prepare their case in the way they would want to,” she says. “That, more than the administrative burden, is impacting recruitment and retention among prosecutors.”
For Halvorsen, the sheer number of cases alone is a major factor in that struggle.
“A recent Association of Prosecuting Attorneys study indicated that the mean average of cases handled by prosecutors at the end of 2023 was 176 – up from 139 in 2019,” he says. “I believe most of the attorneys in my office fall above that number.”
Eroding Evidence and Witness Challenges
Delays caused by the indigent defense crisis can weaken prosecution cases by making evidence harder to preserve. Recollections may diminish, physical evidence can degrade, and key individuals involved in investigations may no longer be available. This erosion of evidence can make securing convictions more challenging, forcing prosecutors to rely on less definitive information than they would in a timely proceeding.
“Any sort of delay, for whatever reason, nine times out of ten, makes the case a little bit more difficult to prove for the prosecution because witnesses’ memories fade over time, witnesses move away, they can die – all those things become more of an issue the older a case gets,” says Garod. “You might also have a victim that starts to lose interest in the process. They get so frustrated by the process that they no longer want to cooperate. I certainly had that happen before where they feel defeated by the system and kind of just want to wash their hands of it and move on with their lives. It takes further explanation and massaging on our part to get them back on board to cooperate and to understand it’s a process.”
Hornick recalls some cases that illustrate these challenges with evidence and testimony.
“There can be delays that tremendously affect and impact victims’ and witnesses’ memories and availability,” she says. “We had one witness in a particular case that was reassigned to Guam, so trying to coordinate that testimony was a nightmare because it’s a whole different time zone. We also had to argue with defense counsel about whether they could appear by video. Additionally, state actors, state witnesses, troopers, and DMV employees sometimes go off to different parts of an agency so the case may be less significant in their minds as they move to another job or transition to another state. It’s a real challenge.”
Hornick continues: “We’ve had to drop cases where a law enforcement officer is unavailable because they went to another career in another state, or another agency and we don’t or can’t have access to that person anymore. Our constitution guarantees the right to confront witnesses, and in some cases, this means testimony must be given in person rather than via video.”
Emotional Toll on Victims
Delays caused by the indigent defense crisis can be especially hard on victims, who are often left waiting without answers. For many, each postponement feels like reopening a wound, forcing them to relive painful experiences while the process drags on.
“One major issue is overworked defense staff needing more time to prepare for trial, leading to continuances,” says Garod. “Then we have to explain to victims or the police that the case is being pushed. From a victim’s perspective, it can be frustrating that the courts are always deferring to a defendant’s rights. Certainly, there is good reason for that, but it’s not something a victim would inherently understand and requires a lot of explanation.”
Garod adds that delays in justice caused by the indigent defense crisis can sometimes leave victims feeling defeated by the system.
“You have some victims who, every time you reach out and they see a call from the office or the subject line with the defendant’s name in it, it can be retraumatizing,” she says. “To have that process drag on and on is a prolonged imposition on them and their lives. Sometimes they just give up and don’t want anything else to do with it and are ready to move on. As time goes on, they might be moving on in their mind from what happened.”
Hornick recalls several cases where delays in justice have led to victims suffering.
“If the assigned public defender leaves the program, another public defender must be appointed and obviously has to continue the matter in order to get up to speed,” she says. “No judge is going to deny that request, but once again the victim is left to feel as though the system is unfair or is more fairly tilted toward a defendant.”
Addressing the Crisis
A 2011 Northwestern University Law Review article, “The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants,”1 explored the systemic impact of overburdened prosecutors – an issue it describes as often overshadowed by concerns about public defender workloads. While public defenders’ caseloads have long drawn criticism, the piece highlights that “many prosecutors are tasked with handling five or even ten times as many cases as guidelines recommend for public defenders.”
These excessive caseloads don’t just strain prosecutors – they harm everyone in the justice system. Victims receive less attention, guilty defendants may go free, and crucially, criminal defendants suffer when prosecutors don’t have the time or resources to “recognize less culpable defendants” or to consider diversion to treatment courts. For innocent defendants, the article explains, delays in identifying weak cases can be devastating, often leading to plea deals just to get out of jail – what the authors call a trade of “time served” for a guilty plea.
As a solution, the authors advocate for increased funding for both sides of the courtroom, warning that bolstering prosecutors alone would “exacerbate the imbalance.” They suggest linking new funding:
“One option is to directly tie additional indigent defense funding to the added resources for prosecutors. By coupling prosecutor funding with indigent defense funding, legislatures likely would find it easier to spend money on indigent defense.”
The article also points to a practical example from Tennessee, where prosecutors and public defenders jointly used weighted caseload data to successfully petition their legislature for more funding – an approach first documented in a 2006 William & Mary Law Review article, “The Political Economy of Application Fees for Indigent Criminal Defense,” by Professor Ronald Wright and Wayne Logan.2
The Broader Impact
The challenges posed by the indigent defense crisis extend beyond the defense bar, affecting prosecutors and law enforcement agencies statewide. Limited resources and staffing constraints create delays and complicate the administration of justice. As these pressures continue to mount, the question remains: what happens when cases cannot move forward due to a lack of available attorneys?
“What about the very real scenario when I go to the commissioners or delegation, they deny my budget request, and I have to say I can’t prosecute certain cases because I didn’t have the funding – and defendants walk free?” says Hornick. “How do I face those victims or my staff? How will the commissioners face their constituents when that crisis happens? Across this state, we are not that far from that with respect to law enforcement and prosecutor shortages.”
Endnotes
- law.northwestern.edu/cgi/viewcontent.cgi?article=1184&context=nulr
- law.wm.edu/wmlr/vol47/iss6/5