One of the hallmarks of our criminal injustice system is overcharging by prosecutors. They routinely charge defendants with far more than they can prove because that puts maximum pressure on the person to cop a plea. That’s why more than 95% of all criminal cases end in plea bargains. Balko discussed this in a recent HuffPo article:
The power prosecutors have to charge people with crimes is often overlooked. While probable cause is the minimum standard police officers need to make an arrest and the minimum standard to convict is beyond a reasonable doubt, the question is where the power to charge should be between those two extremes.
In the 22 states that require a grand jury indictment before charging, the grand jury standard is a preponderance of the evidence, although grand juries are sometimes notorious for rubber-stamping a prosecutor’s wishes.
But without a grand jury, a prosecutor’s charging power is entirely discretionary.
Once charged, a suspect often needs to hire expensive legal representation or, if he can’t afford it (and there aren’t many people who can pay for representation on a murder charge), request a public defender. It likely means at least temporary incarceration, the posting of bond, and a stigma more damaging than an arrest, but less so than a conviction.
A judge may occasionally dismiss charges due to lack of evidence, but generally speaking, the decision to charge is the prosecutor’s. And while police officers can be sued for a wrongful arrest, prosecutors are protected by absolute immunity, meaning that as long as they’re performing a prosecutor’s duties, they can’t be sued.
That “absolute immunity,” by the way, is entirely a judicial creation and — except, I suppose for absolute judicial immunity — as overweening an example of “judicial activism” as you’ll ever find, though this is seldom noted. If such immunity is to exist, it should be legislatively arrived at, not the product of judicial fiat.
Personally, I think that overcharging should cost prosecutors something. How about this — the state is on the hook for a pro-rata share of defendant’s legal expenses based on the number of offenses charged, but not convicted. Charge with 20 crimes, convict on 2, you pay 90% of the defendant’s legal fees.
Or maybe it should be based on years: Charges adding up to a maximum penalty of 100 years; actual sentence, 1 year. Government pays 99%. What do you think? I think that we need more oversight of prosecutors, and since I have little faith that the legal establishment will provide it, I’m looking for structural ways to give them skin in the game.
There’s one obvious problem with this suggestion — it doesn’t help with the many cases that have public defenders. The government pays the costs of legal representation for poor defendants — which is most defendants — already. But if it came out of the DA’s budget, that at least provides some incentive to keep the prosecutor in line. But let’s recognize that overcharging is a feature, not a bug. Along with mandatory minimum sentences, this power was put in place by Congress precisely in order to give more power to prosecutors and less to judges, and to allow them to intimidate defendants to force a plea.