Alec MacGillis is a reporter for ProPublica covering politics and government. His work has appeared in The New Yorker, The Atlantic, New York, and the New York Times, among other publications, and he is the author of Fulfillment: America in the Shadow of Amazon. He talked to City Journal associate editor Daniel Kennelly about the effect of court-case backlogs on violent-crime rates.
In The Atlantic and ProPublica, you recently explored the idea that the pandemic-era shutdown of courtrooms might partially explain the crime surge in 2020 and 2021. What is the causal mechanism there?
According to the judges, prosecutors, defense lawyers, violence-prevention workers, and criminologists I spoke to, the causal mechanism took various forms. In some cases, the curtailment of court operations could have led prosecutors not to pursue cases against some perpetrators, who then went on to commit another offense. In others, long delays before trials meant victims and witnesses were less willing to testify or less able to recall events clearly. In still others, perpetrators did not receive the substance-abuse treatment or other services they would have received had their case proceeded more normally, and this absence contributed to their committing another offense. Finally, and perhaps most important, there was the undermining of the broadly accepted deterrent effect provided by the promise of “swift and certain” consequences for lawbreaking.
How can we assess the effects of this variable compared with other causes you mention—changes in police behavior after the George Floyd protests, Covid-driven school closures, and other social disruptions?
You really can’t. I have taken pains in my reporting on the resurgence of deadly violence in recent years to emphasize that it is the result of a confluence of factors. I wrote an in-depth narrative investigation last summer of the homicide spike in Philadelphia, as a window onto the broader nationwide spike, and it showed how the causes you mention, plus several others—such as leadership changes in City Hall and the police department and progressive reforms in the district attorney’s office—all likely contributed to the resurgence. I mentioned court closures only in passing, because Larry Krasner, Philadelphia’s progressive prosecutor, had cited them as a major reason for the rise in violence; my Atlantic article is an effort to look more closely at this factor.
To what extent is the criminal-justice system’s lack of capacity a problem that preceded the pandemic?
This problem absolutely preceded the pandemic, more so in some places than others. Bernalillo County (Albuquerque), which I focused on in the Atlantic article, has struggled with court backlogs and processing delays for years. The current district attorney put a big emphasis on speeding up the system after taking office in 2017 and had made some progress. Then came the pandemic and the New Mexico Supreme Court’s decision to constrict jury trials and other in-person court operations for many months, which greatly worsened the problem.
Are staffing shortages in district attorney’s offices also playing a role? And as a Baltimore resident, have you noticed criminal-justice capacity contributing to the city’s recent crime surge?
For sure, and the backlogs aggravate the staffing shortages, because there’s now even more work to be done. In Albuquerque, prosecutors working on non-homicide cases are carrying about 80 felony cases each, up from about 50 pre-pandemic. According to the Baltimore Banner, the state’s attorney’s office now employs only 135 prosecutors, down from the 200 that the office claimed previously, under the leadership of Marilyn Mosby, who recently lost her Democratic primary for reelection. Each homicide prosecutor in Baltimore is now carrying on average more than two dozen cases apiece—representing more homicides than you’ll find in some entire cities.
What are some policy options for addressing this problem?
Some cities, including Wichita, the other city I focused on in the Atlantic article, have expanded capacity by using some of their American Rescue Plan money to bring back retired judges to handle an expanded docket. As defense attorneys note, though, we need to be careful that the push to expedite cases and reduce backlogs doesn’t come at the cost of due-process protections for defendants. One school of thought maintains that the best way to reduce backlogs is not to process existing cases more quickly but to bring fewer cases in the first place. That argument was put forcefully to me by the chief public defender in King County (Seattle), who said that many property crimes and other offenses would be better handled outside of the court system. Of course, the rebuttal that many would make, in Seattle and elsewhere, is that such efforts at diversion have helped contribute to general disorder.
The most important approach, though, is probably best reserved for the future, to prevent reoccurrence of this problem: court systems should be more cognizant of the role they play as civic institutions central to justice and public order; and they should, in future crises, make the utmost effort to maintain normal operations. In other words, they should follow the lead of Wichita, not Albuquerque.