April 15, 2012


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.

UPDATE: Former prosecutor, now criminal-defense lawyer John Steakley emails:

So who pays? If it’s the prosecutor personally, then good luck getting money out of someone earning a little more than a well-paid public school teacher. If it is the county government, then won’t the jurors (and county taxpayers) have a incentive to convict so that they can reduce their indirect liability? I can already hear the prosecutor’s argument: “A vote to convict means more tax dollars available for teachers, cops and cable TV in the jury room!”

And if we are going to make the prosecutor pay for acquittals, how long until we make the defendants reimburse the government for the expense of convicting them? And wouldn’t that create yet another financial incentive for jurors to convict?

Hmm. Would a prosecutor really make that argument to a jury? Would a court permit it? If so, the problem’s bigger than I thought. But I welcome other suggestions for structural reform, because I have no faith in the system’s ability to police itself.

Another reader goes a bit too far on the incentive side:

You bring up the very real point of prosecutorial misconduct. You get what you reward. Our current system incentivizes prosecutors to over charge and the plea bargain. No skin off their nose if it hurts the defendant and the plea bargain makes their life easier. However your solution tends towards punishing taxpayers, not prosecutors, for prosecutorial misconduct by adding to the tax burden (i.e. paying defense costs). The simplest solution is if the defendant is found innocent on any one charge, then they are found innocent on all. The chance that a prosecutor would over charge then would be greatly reduced, but we would also see many more guilty people go free. Perhaps the solution is to make the prosecutor face a personal penalty. Introduce three jury results (ala Scotland), Guilty, innocent and not proven. Not proven would be where the jury finds not enough evidence to convict, but enough evidence that they can’t clearly say the person is innocent. If the jury rules innocent, then the prosecutor loses his government job and has his law license suspended for a year. Then the prosecutor would have some skin in the game to balance the incentives to overcharge.

I think that would lead to undercharging. And another reader emails:

I’m a Harvard Law graduate working as an assistant district attorney in the Southwest and would like to offer some thoughts in response to your recent post on overcharging by prosecutors. Please do not use my name as I am writing in my personal capacity and do not want my views attributed to the office I work for. Thanks.

I think that the debate would be served by distinguishing between two different senses of the term ‘overcharging.’ In the first sense, overcharging means bringing charges that are not supported by the facts, in other words, the facts do not meet the legal definition of the crimes charged because one or more elements are missing. An example this type of overcharging might include charging a Defendant with bribery of a witness when the Defendant makes a victim some extra-judicial offer of some restitution or compensation, but does not actually ask the victim to change her testimony.

The second sense of overcharging is bringing charges that do indeed have a legitimate factual basis and meet the elements of the statute, but do not serve the interests of justice. For example, it my state, the crime of contributing to the delinquency of a minor, a felony, is defined broadly enough to include a 19-year old who shares a joint with a 17-year old. If the Defendant has no previous criminal history, then a felony conviction for this behavior is probably unjust. But the legislature has made it so. Another example might be a Defendant who uses fraudulent access to a computer at work to steal funds from her employer. She can legitimately be charged with both embezzlement and a computer crime. But depending on the circumstances, the additional punishment of the computer crime might not be appropriate.

The first form of overcharging is unethical and if a prosecutor knowingly brings charges that are not supported by the facts, he or she should be subject to discipline, whether administratively, through the state bar, or even criminally, if the conduct is egregious enough.

The second form of overcharging is much more of a gray area. If the charges are supported by the facts and the law as defined by the legislature, then it is up to the prosecutor’s discretion. There is nothing unethical about bringing such charges, unless they are brought as retaliation against the Defendant or defense attorney rather than to serve justice. Excepting those scenarios, it comes down to the prosecutor’s role vis-à-vis the legislature, and there is no easy right answer. In my mind, this challenge is the best argument for having elected District Attorneys.

I do agree with you that there are prosecutors out there who do not take their role seriously enough and cause damage to the public because of it. But I do not agree with using the convictions at the end of the process as your final metric of whether something was overcharged. There are many reasons why legitimate charges may not result in convictions. Witnesses do not always show up to trial. The witnesses who do show up may not necessarily come across very well. Evidence may get excluded by the judge. And a jury is a strange beast, not necessarily reaching the just result in every case. I believe that they do the right thing in most cases, but any prosecutor or defense attorney can tell you that there are outliers, cases where the jury acquits on solid evidence or convicts on insufficient evidence.

Well, even if the charges are theoretically justified, the practice of laundry-list indictments — which you didn’t used to see — puts unfair pressure on defendants to agree to a plea, because they potentially face enormous jail time if they go to trial. Prosecutors have no such countervailing pressure. I’d like it to be expensive to overcharge in some fashion. Of course, if judges were to strike excessive charges that would help, but this doesn’t seem to happen. Perhaps if we compute prosecutors’ conviction rates based on the initial charges — charge 50 crimes, accept a plea deal on 2, it counts as a 4% conviction. . . .

And reader Tim Maguire writes: “I think we could go a long way towards reining in over-aggressive prosecutors simply by barring them from running for political office until, say, five years has elapsed from their last prosecution.” Heh.

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