No Rest for the Prosecution - Washington State Bar News

Why a hiring and retention watershed moment among prosecutor offices has many raising the alarm

BY COLIN RIGLEY

Across the country, prosecutor’s offices are struggling. With many prosecutors saying they are underpaid and overworked, offices from Houston to Los Angeles to Yakima are experiencing the consequences of a mounting problem: People just don’t seem to want the job anymore.

“Statewide, we have seen a reduction in new law school graduates applying to prosecutor’s offices,” said King County Prosecuting Attorney Leesa Manion.

In fact, it’s a national problem. In January 2024, writing for Slate,¹ Adam Gershowitz, the James D. and Pamela J. Penny Research Professor at William & Mary Law School, said:

There is a prosecutor hiring crisis in the United States. Prosecutors are quitting in droves and there are few applicants to replace them. If you believe America and its prosecutors are too punitive, your reaction might be “Great.” Prosecutors drive the criminal justice system, so fewer prosecutors should mean fewer people going to prison, right? Not so fast.

Fewer prosecutors do not translate into fewer defendants being charged. Instead, prosecutorial vacancies lead to existing prosecutors having impossibly high caseloads and making serious errors in those cases. Counterintuitively, huge vacancies in prosecutors’ offices are actually bad news for criminal defendants.

In a research paper further documenting his findings,² Gershowitz reported that prosecutor office vacancy rates range from troubling to crisis-level: 15 percent in Houston and Los Angeles, 20 percent in Detroit, 25 percent in Alameda, and as high as 33 percent in Miami. “The situation is equally dire in many large and small counties across the nation,” Gershowitz wrote.

In Washington, Gershowitz only documented statistics for Yakima. As of November 2023, the office had six open positions among its total allocation of 37 prosecutors, a 16 percent vacancy rate. Additionally, the county cut the office’s budget by $175,000, “which will force the district attorney to reduce the number of prosecutor positions from 37 to 35.” Even when the office bumped its starting salary for an entry-level prosecutor significantly, from about $63,000 to about $80,000 (about a 27 percent pay increase), it still had little impact on the position vacancy rate. (Though not documented in the report, in 2024, the county increased starting pay for an Attorney I position to $100,000.³)

“It’s literally: we’re not getting applicants,” said Joseph Brusic, the Yakima County prosecuting attorney and president of the Washington Association of Prosecuting Attorneys Board of Directors. “If we don’t get applicants in the door, then we’re not hiring—we don’t have a body.”

So what’s going on? The exact reasons are potentially many, varied, interconnected and, at this point, somewhat mysterious—but there are a handful of common suspected root causes that are stopping many lawyers from accepting jobs as prosecutors. Perhaps most pressing is that fewer law students are seeing the value of being a criminal prosecutor, Gershowitz and other prosecutors say, and in some cases are being actively dissuaded by shifting societal and cultural trends and, most notably, even their law school peers. Brusic can attest firsthand. His daughter—now a prosecutor for the city of Yakima herself—was “bullied” over her chosen career path by her fellow law students.

The crisis in public defense has been garnering more headlines and public attention recently, but prosecutors say they too are hurting badly.

“Talking to people who have just taken the bar, I’ve asked them how it is looked upon if they say they want to become prosecutors,” Brusic said. “They said they’re almost ridiculed because students don’t see those positions as having value.”

The issue has also been documented nationally. According to Gershowitz:

The murder of George Floyd in the summer of 2020 created an ‘astonishing [negative] shift in public opinion’ toward law enforcement. The impact of the murder and the ensuing protests is often discussed in terms of the public’s reaction to policing. However, some prosecutors have also noticed that law students and entry-level lawyers have begun to have negative attitudes toward prosecution work as well.

A senior prosecutor in Texas told Gershowitz that following Floyd’s murder “‘younger students increasingly seem to have the mindset that to work for justice that they have to do it as a defense attorney.”⁴ A prosecutor in Wisconsin told him, “There’s been so much bad publicity, around policing and the whole criminal justice system, that it doesn’t appear that there are as many students even … taking the criminal law courses and doing internships in criminal law as there used to be.’”⁵

This shift has been sudden and unexpected, particularly because a job in prosecution has long been viewed favorably as a solid place to kick off a legal career. “Just a few years ago, entry-level jobs in prosecution were considered desirable,” Gershowitz wrote. “While the salary for prosecutors has always been low, the tradeoff—exceptional training and courtroom experience—has been worth it for many entry-level lawyers. Within a few years, many prosecutors have more trial experience than they would get in a lifetime at a civil law firm.”

Since 2008, the King County Prosecuting Attorney’s Office “has been under the threat of perpetual budget reductions,” Manion said. “We have been told that our office’s 2026-27 budget may be reduced by as much as $15 million, which equates to the loss of 90 deputy prosecuting attorneys, in an office that is already stretched thin.”

“I have an office where I have prosecutors with 50 homicide cases on their desk,” Manion said.

The crisis in public defense, with its own well-documented budget and personnel shortages, has been garnering more headlines and public attention recently, but prosecutors say they too are hurting badly.

“My people work really hard,” Manion said. “They work nights, weekends, late into the evening. They also don’t get enough time with their family and loved ones.”

And qualitative national data shows that most prosecutors are burning out and planning their exit strategies. According to a national survey of 4,500 prosecutors conducted by the National District Attorneys Association (NDAA), the 2024 “National Prosecutor Retention Survey,”⁶ more than half of prosecutors enjoy their work; however, about 70 percent are thinking about leaving.

“It is no secret that effective recruitment and retention are dilemmas prosecutors’ offices are facing nationwide,” according to the NDAA survey introduction. “Prosecutors’ offices must be staffed with qualified, capable, and passionate advocates for justice to fulfill the promises of our criminal justice system and to provide for the safety of our citizens.” Of note among Washington prosecutors, as reported in the survey:

69 percent said they have given serious consideration to leaving their current employer. That’s significantly higher than the national average of 57 percent.
48 percent said they have considered leaving within the last month.
20 percent said they have considered leaving within the last six months.
The top two motivating factors that made them consider leaving were the potential for better pay (52 percent) and their current heavy caseloads (46 percent, which is considerably higher than the national average of 37 percent).
The most important factors that led them to work for their current employer included “Doing justice for my community” (70 percent), “Opportunity for trial work” (39 percent), and “Belief in the mission of the agency” (35 percent).

In Washington, there are further concerns that new shifts in public defender caseloads will exacerbate the hiring and retention problems among prosecutors. In September 2024, following extensive discussion and study, the WSBA Board of Governors adopted recommendations of the Council on Public Defense to revise the caseload standards for indigent defense and reduce the workload for public defenders with the intent of keeping them from drowning in it. The standards were sent to the Washington Supreme Court, which maintains its own standards for indigent defense, with the hope that the court will make similar revisions.⁷

In Washington, there are further concerns that new shifts in public defender caseloads will exacerbate the hiring and retention problems among prosecutors.

Among public policy wonks, it’s common to hear an analogy of a balloon—you squeeze one part of the balloon and another part bulges out. For prosecutors now, the concern is that the focus on public defense, while necessary and appropriate, could lead to problems in other parts of the criminal justice system. According to Manion, if her office were to adopt the same standards as those proposed for public defense, thereby lowering the caseload each attorney could take on, she would need 339 new deputy prosecuting attorneys to comply.

“I feel like we in the prosecuting attorney’s office have always made do with the resources that have been assigned to us,” Manion said. “Maybe, in hindsight, we have done a disservice to ourselves by making it look easy.”

Brusic echoed these concerns, saying that prosecutors, public defenders, and the court are part of a three-legged stool. “If you change one aspect of the stool it obviously becomes unstable.”

“The system has to be symbiotic; it has to work together,” Brusic added. “We have to be included in the conversation, and we felt that we were not being included.”

In Yakima, under the new public defense standards, Brusic said the county will need 20 to 30 more public defenders and “we would need easily 15 to 20 prosecutors.”

In particular, Brusic and Manion take issue with the suggestion that prosecutors have as much control over the caseload as is sometimes claimed. While prosecutors have some discretion in what cases they charge—a point public defenders and others raise when discussing ways to rebalance the criminal justice system so public defenders aren’t buried in an impossible pile of cases, their clients aren’t left to languish in jail, and important cases aren’t dismissed for lack of representation—they say that it isn’t as simple as turning a valve.

“It is true that prosecutors have discretion … but it is too simplistic to say just don’t charge cases,” Manion said. “How do I sell that to the person whose family member was murdered? How do I say that to the person whose family member was maimed by a car because of a drunk driver?”

King County prosecutors do divert as many cases out of the court as they can, Manion said. “The things that we can divert out of the system, we do, and I repeatedly defend the effectiveness of our diversion programs to those who are critical [of them].”

Similarly, Brusic said you can’t just increase public defenders without adding more prosecutors “because all of a sudden you’re going to have the same problem on the prosecution side.” At the same time, “it’s not simple enough to say, ‘Joe, have people in Yakima County not charge out crime.’ I’m an elected official. People voted me in to keep people accountable, provide public safety.”

“We cannot allow the system as a whole … to crumble because of the nature of looking at only one leg of the three-legged stool,” Brusic said.

Council on Public Defense Chair Jason Schwarz noted that some members of the Council were prosecutors and participated in the discussions around indigent defense standards. The Council sent out surveys to public defenders and former prosecutors, who provided extensive feedback. For public defense, the biggest challenge was determining the local drivers of their workloads in order to craft relevant standards that would encourage existing public defenders to remain in the profession and recruit new lawyers to fill out the ranks. Public defense has been experiencing a workload crisis for years if not decades, Schwarz noted, so the Council focused on the causes of poor retention, burnout, and excessive workloads to, ideally, formalize new caseloads, but also develop better data collection and analysis for the future, which Schwarz said is reflected in the draft of Washington Senate Bill 5404.

“I personally believe that it would be very helpful for prosecutors to [also] have a study,” Schwarz said. “I suspect they will learn, like we did, that workload is not as simple as the number of cases a lawyer touches in a year. It’s a much bigger ecosystem that puts demands on lawyers, their staff, and the system.”

The crisis in public defense is well known and the reasons for it seemingly understood, although the solution is complex. For prosecutors, however, the root of the problem may be less clear. Brusic said he and other prosecutors have been going to law schools to understand and perhaps change negative perceptions that are preventing new lawyers from joining the field. Simultaneously, prosecutors in Yakima and elsewhere are scrounging for extra dollars to beef up salaries so they can entice new lawyers and prevent existing ones from leaving. “We’ve discussed that in every meeting we’ve had as prosecutors for the past two years; we have to figure out why we’re not getting applicants—we’re not really sure,” Brusic said.

What is certain is that without a concerted effort to highlight the issue, diagnose it, and start addressing it, these problems within the criminal justice system aren’t going away on their own.

“I don’t know how much time and effort it’s going to take,” Brusic said. “But it certainly will be worth it because the system as it is now is not working.”

About the author

Colin Rigley is a communications specialist with the WSBA. He has nearly 15 years of experience in journalism and communications. He can be reached at:

colinr@wsba.org

NOTES

1. Adam Gershowitz, “The Surprising Downside of a Criminal Justice Trend Reformers Might Think They Love,” Slate, Jan. 22, 2024, https://slate.com/news-and-politics/2024/01/prosecutor-crisis-criminal-justice-reform.html.

2. Adam M. Gershowitz, “The Prosecutor Vacancy Crisis,” William & Mary Law School Research Paper No. 09-480, Dec. 15, 2023, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4666047.

3. Yakima County Proposed 2024 Attorney Pay Plan, effective July 1, 2024, www.yakimacounty.us/DocumentCenter/View/38063/Attorney-Pay-Plan-Effective-July-1-2024.

4. Adam M. Gershowitz, “The Prosecutor Vacancy Crisis,” William & Mary Law School Research Paper No. 09-480, Dec. 15, 2023, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4666047.

5. Id.

6. National Prosecutor Retention Survey, National District Attorneys Association, June 2024, https://ndaa.org/wp-content/uploads/NDAA-National-Prosecutor-Retention-Survey-FINAL-June-2024-1.pdf.

7. “State Bar Adopts New Public Defense Standards,” March 14, 2024, www.wsba.org/news-events/media-center/media-releases/state-bar-adopts-new-public-defense-standards.