Recently on Above the Law, a veteran defense attorney from New York City discussed the problem of prosecutors over-charging defendants. As she explained, many prosecutors, notably including federal prosecutors, have a policy of charging the greatest provable crime rather than the one that best fits the facts of the case. This leads to pernicious consequences throughout the justice system.
Consider the case of a man who shoplifts a small item that is worth less than $100. On his way out of the store, he bumps into a woman and nearly falls down. She angrily calls for security and the shoplifter is caught.
Under these circumstances, the most reasonable charges would probably be misdemeanor larceny and misdemeanor assault — or no assault charge. The dollar value of the item largely determines the larceny charge, but an ambitious prosecutor could conceivably charge the assault as a felony.
If the prosecutor brings an unreasonable felony assault charge, however, there is essentially no one to stop her. Even so, that charge will affect every aspect of the defendant’s case.
Bail. Since the charge is a felony, any bail will be higher. If bail is unaffordable, the defendant has a very strong incentive to plead guilty. The wait for a trial date is so long in many areas that the sentence may be shorter than the wait.
Plea bargaining. Since the most serious charge has been brought, the prosecutor has plenty of room to offer a lower charge during plea bargaining. This means a plea bargain, which is supposed to benefit the courts by reducing the trial burden, is the only way the defendant can reach a reasonable charge that accurately reflects the facts of the case. The prosecutor gives up nothing by offering a lesser charge. Moreover, judges take no part in the actual bargaining but merely sign off, as appropriate, on the pleas.
Trial. The fact that a felony charge has been filed is often viewed by jurors as proof that felony-level conduct occurred. Although jurors are generally told that the charge itself means nothing, many still assume that a prosecutor wouldn’t bring such a charge unless it were merited.
In addition, overcharging gives the advantage to prosecutors when jurors reach a compromise verdict. This typically occurs when jurors decide the prosecution hasn’t proven the greatest charge but that the defendant did do something illegal. In such situations, jurors often convict the defendant on a secondary or lesser charge.
Prosecutors should be ethically bound to bring the most reasonable charge under the circumstances, including taking into account any mitigating circumstances. Under the current system, however, there is little opportunity to require it.
