Resources are finite and trade off cross-issue.

In the background of these decisions are limited resources. Judicial vacancies, or resource constraints more generally, may impact the number of cases that can be prosecuted and tried. When there are fewer judges available, prosecutors may incur costs from prosecuting a case regardless of whether the defendant ultimately goes to trial. For instance, the Speedy Trial Act of 1974 establishes time limits for completing various stages of a federal criminal prosecution. In general, the Act requires the government to file an indictment within 30 days of a defendant’s arrest. If a defendant enters a plea of not guilty, he or she must be tried within 70 days of the indictment, which can be extended if a judge grants a continuance.4

How binding is the constraint imposed by the Speedy Trial Act during judicial vacancies? While data on the number of speedy trial violations over time is lacking, anecdotal evidence suggests that judges are unwilling to perpetually extend the time required to go to trial, noting that unless vacancies are filled, they would be required to dismiss some criminal cases.5 In 2010, the American Bar Association noted that the strain judicial vacancies imposed on caseloads forced federal judges to allocate their limited time to criminal cases because of “speedy trial rules that require them to put criminal cases first,” resulting in civil proceedings being put off.6 In fact, judicial vacancies have posed such severe speedy trial issues that in January 2011, the federal district court in Arizona enacted a year-long, emergency suspension of the mandated speedy trial time limitations because of the court’s shortage in judges.

Because speedy trial violations have potentially severe consequences, prosecutors face higher costs of prosecution when there are vacancies that increase the workloads for remaining judges. If a defendant is not indicted on time, charges must be dropped. If a defendant is not tried on time, he or she may move to dismiss the charges, with the court having discretion to dismiss with prejudice, which would bar a subsequent prosecution. In fact, charges can be dismissed with prejudice even if the speedy trial violation results from a judge failing to rule on a motion within the specified time period with no fault attributable to the prosecutor, requiring prosecutors to be especially alert to the speedy trial clock and to monitor the court’s compliance.

Even if there is no speedy trial violation, prosecutors may face other costs from delay in the resolution of a prosecution. For example, evidence may become stale over time, such as memories of potential witnesses. As one federal judge has noted, vacancies may prejudice case outcomes because “[p]eople lose their memory of what occurred, evidence spoils, people die. It’s not a good thing.”7

The repeated interactions between prosecutors and judges are also likely to put pressure on prosecutors to resolve cases more quickly. Prosecutors may face reputational costs within the local court by burdening judges with high caseloads during vacancies.8 For example, recognizing that judicial vacancies affect judges in their courts, the National Association of Assistant United States Attorneys recently stated that

“[o]ur members—career federal prosecutors who appear daily in federal courts across the nation—are concerned by the increasing number of vacancies on the federal bench. These vacancies increasingly are contributing to greater caseloads and workload burdens upon the remaining federal judges. Our federal courts cannot function effectively when judicial vacancies restrain the ability to render swift and sure justice.”9

Analogously, prosecutors’ trial costs, conditional on prosecution, also increase when there are judicial vacancies. Indeed, recent media attention has highlighted criticisms of prosecutors who review every case and push to trial, despite mounting caseloads. Judges in these local courts have responded by allowing only one continuance per case in order to incentivize prosecutors to more effectively screen cases and strike plea deals prior to trial.10

Accordingly, judicial vacancies require prosecutors to allocate limited resources among potential cases, such that the number of active judges in a district court is effectively a bottleneck on prosecution.11 Then United States Attorney for the Southern District of California, William Braniff, argued that high caseloads per judge, due to judicial vacancies, dramatically affected how criminal defendants are disposed of (Braniff 1993). According to Braniff, prosecutors have the “discretion necessary to ensure that the criminal justice system does not become overwhelmed by local conditions” by balancing resources and crime, the “resource in shortest supply [being] the number of district judges” (Braniff 1993, 312).

Indeed, prosecutorial priorities and trade-offs may be most revealing when resource constraints are acute because “[f]ederal law enforcement resources and federal judicial resources are not sufficient to permit prosecution of every alleged offense over which Federal jurisdiction exists” (USAM 1997). Thus, understanding how prosecutors adapt to resource scarcity in the federal courts also helps shed light on prosecutorial incentives and trade-offs more broadly.12