How to Deal With Prosecutors Overcharging

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.

Glenn Reynolds suggests a way to prevent this:

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.

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  • slc1

    The current Zimmerman case might be an example of overcharging to force a plea bargain. It should be recalled that the police officer who was in charge of the crime scene wanted to charge Zimmerman with manslaughter.

  • eric

    To add to Glenn’s ways, we could also change how prosecutorial job performance is evaluated. Instead of # convictions, make it (# charges that hold up – # that don’t). That may not get rid of the institutional incentive to overcharge, but it at least removes the prosecutor’s personal career incentive to do it.

  • http://rockstarramblings.blogspot.com/ Bronze Dog

    I think it’s appropriate to bring up one idea I had for the public defender problem: Make a requirement that to practice as a prosecutor, a lawyer has to work some minimum number of hours or cases per year as a public defender.

  • http://motherwell.livejournal.com/ Raging Bee

    Bronze Dog: Sounds nice, but a PD in that position would have somewhat divided loyalties, plus, quite possibly, some subtle pressure not to be too zealous as a PD, otherwise he’d not be too well evaluated as a prosecutor.

  • http://rockstarramblings.blogspot.com/ Bronze Dog

    Yeah, it still needs work to prevent abuse, but I think the general idea might be worth exploring.

  • D. C. Sessions

    The biggest part of the problem is that even if you’re acquitted, you can be ruined financially. The moment a prosecutor files charges, the defendant is instantly out more money than all but the wealthiest can afford. And, yes, this is a feature — you’re far, far better off copping a plea where you pay a $20,000 fine than you are spending twice that to get off even if the case has absolutely zero merit.

    IMHO part of the problem is the binary “guilty/not guilty” system we have. Rather than exclude the middle, we’ve excluded one extreme: instead of “true, uncertain, and false” we just have “true vs. uncertain.”

    Perhaps trial courts should have the option of three outcomes: guilty, unproven (the so-called “Scottish verdict”) and “what the fuck were you thinking of to bring this before the Court?” The latter verdict would have the defense’s legal expenses paid by the prosecution.

    Ah, fantasy.

  • http://festeringscabofrealityblogspot.com fifthdentist

    In the court in my county I’d say 90-percent plus are represented by a staff of three public defenders. Having a case load like that, what else are they expected to do other than plea practically everything out?

    To my utter amazement, Georgia’s Legislature just passed reforms intended to send most minor drug defendants to drug courts and drastically cut the number of other non-violent offenders sent to prisons.

    This only came about because they realized they were looking at spending a quarter of a billion in the next five years to build more prisons. To their credit, I suppose, they didn’t just dial the 1-800 number of the rent-a-prisoner private prison firm to come in and build more.

  • http://www.facebook.com/profile.php?id=601248873 kennethhansen

    The concept of plea bargaining is one that I find astonishing and horrible.

    How many innocents have plead guilty on a misdemeanor to avoid getting stuffed in jail for years on a felony charge? How many innocents have plead guilty and wound up in jail for decades to avoid the risk of getting a death penalty??

    This is why there is no such thing as a plead bargain in Norwegian justice system. Virtually every single crime except a few minor misdemeanors are treated by the courts.

    Hell, in the Norwegian justice system a confession is not even considered a particularly strong piece of evidence. You cannot even be found guilty based on a confession alone. There MUST be other evidence as well, and it has to be strong evidence as well.

    For a prosecutor to withhold evidence from the defense, or for the defender to give outright bad advice are felonies in their own right!

    For the most part I like the USA and Americans, but the more I learn about your country, the more I feel lucky I’m a Norwegean…

  • baal

    @#8 The more I hear about Norway the more I think I want to live there or maybe just import a lot on how you do things :).

  • outeast

    As kennethhansen says, plea bargaining is a screwed concept from the get-go. OK, it cuts costs and time, true. We don’t (I think still? I’m expatriate and out of touch) have plea bargaining in the UK, but there have been those urging its introduction – as an efficiency measure. And it can serve that purpose…

    …but how is justice itself served by such a Pythonesque, 10-for-that-you-must-be-mad haggling system? It damned well isn’t! That’s partly for the reasons discussed here, but it cuts both ways: it’s not just that people get forced into pleading guilty to lesser charges in order to avoid worse ones, it also means people can get away with serious offences by copping to lesser ones. That’s not justice!

  • http://www.facebook.com/profile.php?id=601248873 kennethhansen

    @#9 baal, we do have shortages of engineers and other experts at bachelor level or higher, so please come join us!

  • Azkyroth, Former Growing Toaster Oven

    Kenneth – I’m intrigued.

    You also have a pretty cool climate, as I recall, and a lot of hydroelectricity…

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