I.  Introduction and Methodology

At the request of The District Attorney General's Office of Memphis and Shelby County (hereafter referred to as the District Attorney's Office), the Memphis Shelby Crime Commission agreed to compare staffing levels within the District Attorney’s Office with staffing levels of District Attorneys' Offices in comparable cities.

As with many past surveys, the Crime Commission selected 16 cities to review: the Memphis 2005 peer cities,¹ and the nine cities with populations above 500,000 that had a significant reduction in crime during the 1990s.² Taken together, these sixteen cities can provide a diverse cross-section by which to compare the policies and practices of Memphis. After professional consultations with its research team, the Crime Commission decided to employ a written survey methodology to determine the staffing levels and policies of the offices in those selected comparison cities. All questions for the survey were developed by the District Attorney's Office, which represents all of Memphis and Shelby County. The Crime Commission administered the survey during a 60-day period from February to April 1999. The completed surveys were then faxed back to the Crime Commission for compilation.

As with any type of survey research, the quality of the information received is dependent on the knowledge and accuracy of the informant. Regarding this survey, the informants in all of the participating District Attorneys' Offices were assistant district attorneys who were identified by their offices as the individuals most knowledgeable about quantitative internal data. Further, because the survey questions were primarily quantitative in design, the results would appear to have some internal validity. Questions related to perceptions of policies or procedures were not a significant component of the survey. Some answers that appeared puzzling to the research team upon initial review were rechecked with the informant for further clarification. The survey itself was concerned solely with levels of staffing at each District Attorney's Office. Finally, it is important to keep in mind that the internal and external validity of this report's findings are predicated upon the accuracy of the data self-reported by each participating prosecutor's office.

This report will provide a definition-based explanation of the role of a local District Attorney's Office as well as a series of tables and charts comparing the surveyed cities. Because so many variables can affect a prosecutor's office’s level of staffing-- including arrest data, case backlogs, and the caseload capacity of the offices of the court, pre-trial services and public defender-- this report cannot state definitively an opinion as to an appropriate or ideal level of staffing at the District Attorney’s Office, based on the relatively limited scope of the survey. Per the original request from the local District Attorney's Office, the Memphis Shelby Crime Commission has compared only a few variables collected from the survey data as well as from secondary sources. However, the data collected does reveal a number of relevant findings that relate directly to the issue of local prosecutorial staffing levels. These findings will be presented in the final section of this report.

II.  Review of Secondary Sources

As the link between the police and the courts, the locally elected prosecutor is the government representative and advocate in all phases of criminal adjudication, from the reviews of arrests for probable cause determination to the filing of charges and the trial of cases for the state. The radically decentralized concept of public prosecution, with the state as client, was created in colonial America as a reaction to the English system of private prosecution.

American law is silent on what a district attorney should do with the cases the police bring to court.³ In many jurisdictions, a prosecutor reviews all arrests as well as search warrants before they are issued. A prosecutor must then decide whether or not to charge the suspected individual. Prosecutors also handle the scheduling of cases for trial and the acceptance of plea agreements. Because the responsibilities of the office are so cumbersome, most district attorneys in larger municipalities maintain a staff of assistant district attorneys who prosecute cases in a manner consistent with policies and procedures established by the chief prosecutor. It is the proper size of the staff that is the primary concern of this report.

The depth and breadth of legal responsibilities point to the immense power of prosecutorial discretion at each essential step in the criminal justice process. Prosecutors have the power to dismiss cases (by declining to prosecute), charge suspects, divert individuals suspected of crimes to a public or private social service agency, and so on. Dismissing cases may be an underestimated factor when examining the duties of the prosecutors. However, various studies have found that prosecutors dismiss one-third to one-half of all felony cases prior to trial or before a plea agreement is attained.⁴

Cole classifies the duties of the prosecutor into four "role conceptions":

× Trial counsel for the police. Prosecutors who view their primary function in this light believe that they should reflect police views in the courtroom and take a crime-fighter stance in the public.

× House counsel for the police. These prosecutors believe they are there to give legal advice so that arrests will stand up in court.

× Representative of the court. Such prosecutors consider their primary responsibility to be enforcement of the rules of due process to ensure that the police act in accordance with the law and uphold the rights of the defendants.

× Elected Official. Prosecutors who view their role primarily in this way may be most responsive to community opinion. The possible political content of their decisions may be a major concern of this type of prosecutor.⁵

The above role conceptions will vary, depending upon the emphasis a prosecutor places on the office's primary stakeholders-- law enforcement personnel, court professionals, and citizens of a respective community. Often, the peculiar dialectic of the prosecutor's role creates situations whereby the prosecutor theoretically serves as both an instrument of law enforcement and as a representative of the accused. Skilled prosecutors must learn to combine the various role conceptions by balancing the professional demands of their work with the highly political context of their office.

But the domain of the prosecutor, i.e., the decisions over which the prosecutor lays claim, can be deeply influenced by staffing concerns. For example, a prosecutor's office with adequate staffing may be in a better position to serve in the labor intensive role as house counsel for the police, reviewing all cases brought by them for probable cause, than a prosecutor's office that is understaffed. The impact of staffing on the above role conceptions will be discussed in detail later in this report.

A prosecutor's office shapes its caseload primarily through policies about how stringent requirements of proof will be at the earliest stages of prosecution. Knowing the charging policies of a prosecutor, one can predict the expected dispositional pattern of cases. In determining what charges (if any) to affix, most local district attorneys follow one of three models identified by Jacoby on the basis of data collected from more than 3,000 prosecutors.⁶

× Legal sufficiency is formally defined as the presence of the minimum legal elements necessary for the prosecution of a case. Legal sufficiency means that each case must meet the legal standard specific to each stage of the prosecution; thus, the evidence of guilt develops as the prosecution proceeds from preliminary arraignment to trial. Since the earlier standards of proof require only a showing of probable cause, a great many cases are accepted for prosecution, but the majority of them are later disposed of by plea agreement or dismissal. According to proponents of this approach, the labors of law enforcement are not inadvertently squandered when cases are dismissed too soon.⁷

× System efficiency is the operation of the prosecutor's office in such a way as to effect speedy and early disposition in response to caseload pressures in the system. Weak cases are screened out at intake, and other nontrial alternatives are used as a primary means of disposition. According to Jacoby's research, this model is followed when the trial court is backlogged and the prosecutor has limited resources. Thus the prosecutor must both screen out weak cases at the intake point and also use other nontrial alternatives to minimize the number of trials.⁸

× Trial sufficiency is the presence of sufficient legal elements to ensure the successful prosecution of a case. Under the trial sufficiency model, a prosecutor evaluates each case in terms of the prediction of whether it will produce a conviction; cases are reviewed using the highest degree of proof, the trial standard of "beyond a reasonable doubt." Trial sufficiency does not mean that the prosecutor accepts only sure cases; rather, it means that when the facts are present to sustain a conviction, every effort is made to secure that outcome.⁹ Proponents of this approach claim that it provides a more ethical treatment of defenders and represents a wiser use of a prosecutor's resources. Because the use of plea negotiations is minimal, the trial sufficiency model presupposes good police work and court capacity.

The importance of the dispositional pattern of prosecutor's offices and the impact staffing levels may have on these patterns will be discussed later in the report.

This section will address the issue of the impact of staffing both on the prosecutor's office and the local criminal justice process. Secondary sources indicate that staffing may impact both the role conceptions and the management of the prosecutor's office in a number of significant ways. Staffing levels can affect individual case evaluations and the determination to dismiss cases by declining to prosecute. One should be able to predict that an inadequately staffed prosecutor's office will have a significantly higher number of dismissals and plea negotiations than a prosecutor's office with a critical mass of deputy attorneys. This hypothesis concerning plea negotiations will be tested when the findings are presented and discussed.¹⁰

For a prosecutor's office that lacks adequate staffing, a system efficiency model may be appealing from an administrative perspective, as it may appear inefficient and expensive to perform work that will probably have no advantageous result. To compensate for a lack of experienced trial attorneys, a prosecutor's office may embrace a system efficiency model requiring more stringent proof in the earliest stages of prosecution. However, the system efficiency approach should require that a prosecutor's office have well-trained personnel at the intake point so that the critical decision to charge can be based on experience. Likewise, the trial sufficiency approach demands skilled courtroom advocates, while the legal sufficiency model may use less-experienced personnel at the intake point but requires highly skilled plea negotiators. Clearly, predicting how well testimony or evidence will hold up "down the road to court" requires considerable discernment and experience. Both staffing levels and the turnover rates of a prosecutor's office can directly influence case screening strategies.

The decision to use a vertical versus a horizontal prosecution model may also be affected by staffing. Vertical prosecution describes an organizational structure where one deputy attorney handles a case from initial charging to all the way through trial if necessary. Horizontal prosecution describes a structure in which each deputy specializes in a particular task such as charging, plea negotiations, trial presentation and the like. With an increased criminal justice emphasis on victimization, vertical prosecution has become extremely popular among victims advocates. With one lead assistant district attorney often directing a case from arraignment to adjudication, vertical prosecution tends to be more "user friendly" to victims of crime, so that victims do not perceive themselves to be revictimized by the criminal justice process. Irrespective of the organizational philosophy of a District Attorney General, however, staffing levels can determine what type of case management process the prosecutor's office employs. Vertical prosecution's prerequisite that assistant district attorneys be good generalists may not be practical for a district attorney lacking adequate staffing resources.

Prosecutors clearly hold a strategic position within the criminal justice system, since all cases must pass through their office, and accordingly, they are able to regulate the flow of cases and also the conditions under which they will be processed. Dispensing justice efficiently is difficult for urban prosecutors given the caseload in major metropolitan areas and the scarcity of resources to deal with it. While the prosecutors' powers are undoubtedly immense, McCoy reports that the prosecutor's office rarely receives a substantial portion of a county's law enforcement budget.¹¹ According to a 1994 report by the Bureau of Justice Statistics, local jurisdictions nationwide spent nearly 65 billion dollars on justice system operations, including police, courts, prosecution, public defenders and corrections. Police services managed 58.4 percent of that budget, while prosecution accounted for 6.8 percent and public defense 2.0 percent.¹²

A large body of criminal justice professionals believes that law enforcement personnel should bring the cases of all arrestees to the prosecutor for a decision on whether to continue by filing formal charges or to decline to prosecute. Staffing levels therefore can be a significant variable when evaluating the power of a local prosecutor's office. The accusatory, screening, and case management processes of the prosecutor's office are all affected by staffing. Indeed, some of the traditional roles of the district attorney's office may in fact be eliminated entirely due to staffing shortages. If a district attorney's office is adequately staffed, the power of the office may be enhanced by the capability to screen cases early and to make accusatory decisions with the cooperation of the police. Conversely, a district attorney's office without adequate staffing may be forced to diminish its scope as well as its ability to exercise discretion at various points in the criminal justice process. Even felony conviction rates, a favorite benchmark of district attorney generals, can be affected by staffing levels. These qualitative descriptions will become more apparent in the final section of this report.

Clearly, staffing levels in the prosecutor's office can deeply affect the administration of justice locally. Of course, this begs the question, "How does one define 'adequate staffing' for any given prosecutor's office?" Unfortunately, no magic formula exists to determine what the appropriate staffing levels are for a particular jurisdiction. However, internal and external factors, such caseload studies, crime data, local court capacity, case backlogs, local law enforcement and criminal justice staffing data as well as data from comparably sized prosecutor's offices would appear to be particularly helpful in assessing the staffing needs of a local prosecutor's office.

III.  Presentation of the Survey Data

Of the sixteen cities asked to participate in the survey, the following twelve cities responded: New York, Boston, Dallas, San Francisco, Austin, Houston, Birmingham, Charlotte, Indianapolis, Louisville, San Diego, and Nashville. Two of the responses were collected via telephone survey while the other cities chose to have the surveys faxed to them. A copy of the survey questions can be found in the Appendix.

The Crime Commission's data analysis professional then compiled the survey results into four tables and seven charts (the seven charts correspond to the seven columns of Table 3). Table 1 shows populations for each participating city, the number of police officers, the number of full-time prosecutors and the Modified Crime Indexes for 1997 and 1998 (hereafter referred to as the crime index).¹³ Table 2a is a presentation of interpreted survey results, while Table 2b is compilation of the actual survey results. Table 3 introduces the analysis and comparisons of the data presented in the prior three tables. Chart 1 depicts the number of felonies per prosecutor for each of the participating cities. Similarly, Chart 2 depicts the number of misdemeanors per prosecutor. Chart 3 shows the number of pleas per prosecutor, Chart 4 the number of trials per prosecutor, and Chart 5 the number of crimes per prosecutor. Chart 6 indicates the number of prosecutors per 100,000, while Chart 7 indicates the number of police officers per 100,000.

Beginning with the requesting agency, the total caseload for the local District Attorney's Office in 1998, as measured by new cases coming into the office, was 153,377 cases, or 2,160 new cases per prosecutor. This figure includes 121,137 new General Sessions Criminal Court cases, 16,381 new Criminal Court cases, 15,439 cases delinquency cases in Juvenile Court, and 420 drug dealer eviction cases. Using 1998 figures,¹⁴the average caseload on any given day was approximately 1,102 cases per prosecutor. Excluding Juvenile Court delinquency hearings, a variable not requested from the surveyed cities, about 525 cases go to trial annually, while about 129,000 were plea negotiated (either as charged or for a lesser charge). Subtracting the delinquency cases, there were approximately 22,600 new felony cases and 115,000 misdemeanor cases in 1998. Regarding reports of felonious acts, however, Table 1 indicates that local law enforcement personnel reported 53,214 Part One for the same period.¹⁵ Finally, the District Attorney's Office has 80 full-time attorneys; seventy-one of these attorneys conduct trial work while one part-time attorney also conducts trial work. The annual turnover rate for the office is approximately 8%.

From the information contained in Tables 2a and 2b, a quasi-comparison can be made between Memphis and Boston.¹⁶ The population for the city of Boston is 555,024, while the population for Memphis is 637,492. While the populations for these two cities are similar, the crime index for each city are quite distinct. The crime index for Boston is 37,838, while the crime index for Memphis is 64,015. This difference should be reflected in the number of cases handled by the offices annually, and should also be reflected in the number of prosecutors staffed at each office. However, Boston has a lower crime index, a lower population, lower annual felony cases (3,000-3,500), lower cases per prosecutor (150-200), lower average caseloads (50), and lower misdemeanor cases (70,000). However, the number of prosecutors at the District Attorney's Office in Boston is 130 and 100 of these prosecutors also conduct trial work.

San Francisco also has a comparable population, 754,239, but a larger number of prosecutors staffed at its office. The crime index total for San Francisco is also less than Memphis at 51,996. The number of full-time prosecutors at its office is 108 with only 89 felony cases going to trial and only 5,000 cases plea negotiated.¹⁷ The assistant district attorney serving as informant indicated that approximately 70 percent of the total felony cases in the San Francisco office were narcotics cases, and that diversion was the preferred method of disposition for these types of cases. Though data regarding diversion was not requested from other District Attorneys' Offices, this information helps to explain why the number of cases disposed of via trial was lower in San Francisco than in other surveyed cities.

Indianapolis, with a population of 780,630 is slightly larger than Memphis, but has a smaller crime index total at 52,641. The number of full-time prosecutors staffed at its office is 103, while 100 of these prosecutors conduct trial work. However, Indianapolis seems to be most similar to Memphis for the number of cases which go to trial annually (392), the cases plea negotiated (19,169), and annual felony cases (11,538). Indianapolis does reflect a much lower number for annual misdemeanor cases (29,462), but has a much higher annual turnover rate at 25%.

In examining the tables and charts found in the Appendix, it would appear that those cities with higher numbers of prosecutors have more cases actually go to trial annually, and that the caseloads for these prosecutors become much smaller. An apparent relationship also exists between number of prosecutors and municipal populations. New York, with the highest population surveyed (7.32 million), has the highest number of prosecutors (1901); Birmingham, which had the lowest population (275,236), has 35 prosecutors, the second lowest. However, there does not appear to be a relationship between crime index total and number of prosecutors.

Upon initial review, the absence of a relationship between crime index total and number of prosecutors seems surprising. Hypothetically, if a strong prosecutorial presence can serve as a deterrent to crime, can an absence of prosecution due to staffing shortages serve as an invitation to criminal behavior? Similarly, if more crime exists in an area, then theoretically there should be more cases that would result in a need for more prosecution, and thus more prosecutors. However, this relationship does not appear to be reflected in the tables and charts.

Of the data collected, Chart 5 and Chart 6 are perhaps the most relevant for a review of the staffing needs of a District Attorney's Office. Excluding Austin, Texas, the cities which are most similar in population to Memphis (i.e. Indianapolis, San Francisco, and Boston) all have at least 100 full-time prosecutors. The population for Austin is 546,223, somewhat smaller than Memphis’ population, but the number of full-time prosecutors for Austin is significantly smaller (54). Yet the crime index total for Austin is also smaller at 42,988.

While the information collected cannot capture the complexity surrounding the issue of prosecutorial staffing, the staff of the Memphis Shelby Crime Commission will offer a few modest observations which may have an important bearing on any discussion of staffing in the local District Attorney’s Office. On the one hand, the local Office is by far the largest local prosecutor's office in Tennessee with 80 deputy attorneys, 34 or 57.5% more than the next largest office, Nashville.¹⁹ On the other hand, upon analysis of the comparative tables and graphs, the local District Attorney's Office does appear to be significantly understaffed, especially in view of the following sets of data: the number of cases plea negotiated, the average caseload on any given day, the total number of felony cases annually, the total annual cases per prosecutor, and the total number of misdemeanor cases annually.

Now that both some of the secondary literature and the survey results have been presented, one can begin to interpret each data source in light of the other. Such a comparison will be most illustrative of the impact that an apparent local prosecutorial staffing shortage has on the entire local criminal justice process. First, a brief return to the discussion of role conceptions is as good a place as any to begin such a comparative analysis. In view of the data collected, as well as extensive primary research conducted by the Crime Commission, the District Attorney’s Office primarily operates as a court liaison and as an elected representative of the people. While these are extremely important and valid functions, the environment of the local district attorney's office, overshadowed by significant staffing shortages, prohibits the prosecutor's office serving as house counsel to the police, i.e., reviewing all arrests for probable cause. Thus by default, an understaffed prosecutor's office must resort to what can be described as prosecutorial triage. In such a scenario, the assignation of priorities may be based on the degree of urgency professionally perceived by the District Attorney's Office. It seems reasonable to conclude that the police as clients may be perceived as a less urgent role conception, especially when compared to protecting the vital area of felony trials for violent criminal offenses, such as the Part One categories of murder, rape, robbery and aggravated assault.

The recent caseload study by APRI reports that, "As the 'gatekeeper' to the court system, the District Attorneys General wield substantial decision-making power about the filing of charges and whether or not to prosecute. Likewise, once charges have been filed, there are a number of points along the cases processing continuum at which cases may be disposed."²⁰ The metaphor of the prosecutor's office as gatekeeper is indeed apt. However, an understaffed prosecutor's office poses significant regulatory issues in terms of the control of passage both into and out the criminal justice system. Understaffing can produce two potentially significant problems:

1. A lack of supervision in the review of arrests for probable cause, and
2. A high number of cases, dismissed, declined or plea negotiated.

Both types of oversight problems seem visible in Memphis and Shelby County. These oversight issues negatively affect the ability of the prosecutor's office to serve as a gatekeeper, and therefore pose important "security" problems for the entire local criminal justice system, as evidenced by two examples in the next paragraph.

First, regarding the review of arrests for probable cause, the Crime Commission has examined this matter in a White Paper entitled, A Review of Police Detention Practices, in which a local practice known as "on the hook" was discussed. Any interested party is encouraged to read this document with the context of the apparent prosecutorial staffing shortages in mind. Secondly, regarding plea negotiations, the Crime Commission survey indicated that the District Attorney's Office plea negotiates far more cases than any other surveyed city that maintained such statistics (see Chart 3). For example, the rate of pleas per prosecutors for Memphis (1286.7) is nearly six times higher than that for the second highest city, San Diego (219.5). Thus it would appear from Table 2a that cities such as New York, Boston, Charlotte, and San Francisco, with both relatively low numbers of plea negotiations and relatively low average caseloads, are more adequately staffed than the local District Attorney's Office.

Of all the data collected, the comparison of plea negotiations²¹ (see Chart 3) among peer cities is by far the most suggestive of a major staffing shortage in the local prosecutor's office, because one of the axioms of criminal justice is that prosecutors are prone to litigate cases, especially criminal cases. However, the evidence of a substantially higher number of plea negotiations, in comparison to the other survey cities, should not suggest in any way that the local prosecutor's office has a disinclination to prosecute criminal cases. On the contrary, and in light of Jacoby's discussion of dispositional patterns, the data suggest that the local prosecutor's office operates under a system efficiency model, largely because the District Attorney’s Office, at current staffing levels, appears hard pressed to dispense justice efficiently. This is especially true in view of Memphis' extremely high average daily and yearly caseload, in comparison to the other surveyed cities.

Of Jacoby's three models of dispositional patterns-- trial sufficiency, system efficiency, and legal sufficiency-- the system efficiency model is arguably the least desirable, because caseload pressures, as opposed to the merits of the case from either a trial or probable cause perspective, largely dictate whether a defendant might be charged. According to Jacoby, the system efficiency model appears to be the dispositional pattern of last resort, usually followed only when a system is backlogged and a prosecutor has limited resources, as was stated previously. Based on the survey information collected from Memphis and other cities, and a comparative analysis using secondary literature and federally collected crime data, this report by the staff of the Memphis Shelby Crime Commission independently affirms a similar conclusion reached in APRI's weighted caseload study of April 1999: namely, that the workload of the local District Attorney’s Office requires a significant increase in current staffing levels.

In conclusion, it must be noted that an analysis of this kind, even at its best, usually invites more questions that it answers. One of the paramount questions raised by this report may be posed in the following manner: should the courts' handling of civil and criminal cases, and the administration of justice in this community, be determined primarily by issues of staffing levels in the local District Attorney's Office? The Crime Commission's examination of this issue has attempted to show that critical mass of prosecutorial personnel can help determine the quality of nearly all justice services delivered locally, from local enforcement to judicial functions and almost everything in between. However, it seems obvious that a definitive answer to the above question can only come from all prospective funding sources and the constituents those sources represent. Clearly, one of the functions of the Crime Commission is to help shift public thinking from a fiscally-based to a goal-based process model.²² Hopefully, it is equally clear that it is not the position of the Crime Commission that every solution to crime reduction in this community requires major capital and operational expenditures. It is impossible for this community to buy its way out of having one of the highest crime rates of any major city in the United States, including first in rate of rape, first in rate of burglary, second in rate of motor vehicle theft, third in rate of robbery, fourth in rate of homicide, eighth in rate of aggravated assault, fifteenth in rate of larceny, fourth in overall rate of violent crime, and fifth in overall rate of property crime.²³ However, criminal arrests require prosecutors to conduct careful and detailed legal investigations to determine what further proceedings are warranted. District Attorney Offices are liminal positions, portals between arrests and sentences, between merely getting caught and being held accountable for alleged violations of the laws and standards of a community. Having a well-staffed and efficient prosecutor's office therefore seems to be an extremely desirable public amenity, both from a quality-of-life perspective as well as a return-on-investment perspective.

Notes

1 The seven peer cities or Metropolitan Statistical Areas are Atlanta, Birmingham, Charlotte, Dallas, Indianapolis, Louisville, and Nashville.

22 For a discussion of the terms "critical mass", "fiscally-based", and "goal-based", the reader is encourage to read the Crime Commission's first best practice report, Adding Extra Police in Memphis to Build a Critical Mass.

Appendix

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