ABSTRACT

Many of the most widely discussed and influential criminal legal reform proposals of the last several years, including “defund the police,” “no new jails,” and plea strikes, are resource attacks. Resource attacks reduce the footprint of the criminal legal system by creating an imbalance between the resources available to it and the resources it needs to continue status quo operations. Forced into a resource crunch, the theory goes, institutions such as the police, prosecutors, and criminal courts will triage and scale back. There is substantial evidence that resource attacks can, and have, meaningfully reduced incarceration, misdemeanor prosecutions, and executions.

Yet, despite their effectiveness, popularity, and political influence, resource attacks presently exist without a name or identity in the criminal legal scholarship. This article fills that gap, beginning with a definition and a catalog of resource attack case studies and proposals. The catalog includes a novel case study: in 2020, New York rewrote its discovery law to impose substantial new burdens on prosecutors. Prosecutors were quickly overwhelmed—following the law’s implementation, the rate of dismissals of misdemeanor cases in New York City jumped from 32.6% of cases just prior to reform to 55.2% after.

Resource attacks can deliver tremendous impact quickly and at low political cost. However, their effects are often temporary as affected institutions adapt to constraints or secure additional funding. Resource attacks can even backfire, forming the foundation for a bigger, more destructive criminal legal system. The article concludes with guidance for architects of prospective resource attacks: they should tailor their plans to a jurisdiction’s particular legal and institutional features, prepare to stay engaged well after their intervention’s launch, and promote statutory changes that make the temporary effects of a resource attack permanent.