A Macro story for rising criminal court caseloads

    A recent article by two German legal scholars, Krey and Windgatter, in the German Law Journal (published in English) discusses some causes of the exceedingly high caseloads in German trial courts.  Krey and Windgatter point to high caseloads as a primary cause of the plea bargaining in Germany, the nation John Langbein could once describe admiringly as “the land without plea bargaining.”  In this caseload problem, of course, German courts join their American counterparts.   But they also join the courts in most advanced nations from what I can tell, judging from those I have read or heard a bit about: the U.K., Italy and Korea are other examples.  There’s been some very good comparative law scholarship on plea bargaining in recent years—by Maximo Langer, Jenia Turner, Markus Dubber, Steve Thaman, and others.  But I’m not aware of much scholarship on why caseloads have risen across nations in recent decades, though we have some good work on why that is so in the U.S.  The uniform caseload rise is somewhat puzzling to me.  I’ll explain why, then offer a very speculative idea that strikes me as a likely contributing cause—in short, the rise of the welfare state.

    The first reason that a worldwide rise in criminal caseloads seems puzzling is that the reasons for America’s caseloads increase don’t seem likely to explain the situation elsewhere.  America has a uniquely high violent crime rate among advanced democracies (no so with regard to property crimes), although that rate rise and fall in tandem with caseload rates.  We have an even more distinctively high incarceration rate.  Combine that with America’s disposition for more thinly funded public institutions in most sectors (with huge exceptions for prisons and the military).  The caseload increases we worry about are ratios: cases per judge or prosecutor.  So it’s easy to imagine that America has turned to greater use of criminal punishment—either in response to higher crime rates, or simply as a matter of policy despite steady or decreasing crime rates—without a willingness to make sure funding for courts and prosecutors keeps pace.  But European countries like Germany don’t seem as likely to fit that same story—they have lower crime rates, vastly lower incarceration rates, and more of a tradition of funding courts at levels that until recently avoided plea bargaining.

    The second reason that higher court/caseload ratios seem puzzling is that every country is richer than it was 30 or 40 years ago, as measured by per capita GDP.  All things equal, that suggests they have money to keep courts funded at levels that prevailed 30 or 40 years ago.  Yet Germany hasn’t, and that seems like it’s probably a widespread pattern across nations.

    So why are cases-per-judge ratios worse now than earlier?  My suspicion, based simply on only a broad sense of these developments, is that the answer lies in macroeconomic trends of the last 40 years and the increasingly challenging social policy conditions of advanced democracies.  In short, rates of GDP growth have slowed, birth rates have slowed, and retirees live longer (making the young/old, worker/retiree ratio less favorable), so that welfare states face greater challenges in funding pensions, health care and the like.  These trends alone have required nations to shift a greater share of national spending toward welfare spending, simply to keep the same benefits in place.  (Though they haven’t kept them in place—nearly all have adjusted benefits downward in recent decades to deal with this challenge.) On top of this challenge, the politics of western democracies have shifted to the right, though much more so in the U.S. and U.K. than elsewhere.  That’s meant lower tax rates especially on upper incomes and further cuts in public budgets (though again, the U.S. has made exceptions for prisons and the military; indexed entitlements like Medicare also rose here and elsewhere, and are now budget-cut targets). The result, I suspect, is that every state, without putting it in these terms, has shifted scarce public funding from courts to other public projects—in some broad sense, to the social safety net (again, more so in Germany than the U.S.).  Thus, caseload increases aren’t just a function of rising crime, nor of cuts to court budget per se; they reflect choices to squeeze courts more in order to squeeze other public spending less.  Clever econometricians may have ways of testing this thesis.  I’d love to see the results; again, what I offer isn’t much more than a hunch.