Overcharging (law)

Overcharging, in law, refers to a prosecutorial practice that involves "tacking on" additional charges that the prosecutor knows he cannot prove.^[1] It is used to put the prosecutor in a better plea bargaining position.^[2] The term has been defined in different ways. Alschuler writes that "to prosecutors, overcharging is accusing the defendant of a crime of which he is clearly innocent to induce a plea to the 'proper' crime. Defense counsel identify two types of overcharging. 'Horizontal' overcharging is the unreasonable multiplying of accusations against a single defendant. He may be either charged with a separate offense for every technical criminal transaction in which he participated, or the prosecutor may fragment a single criminal transaction into numerous component offenses. 'Vertical' overcharging is charging a single offense at a higher level than the circumstances of the case seem to warrant."^[3] Vertical overcharging is deemed to be the more abusive of the two practices.^[4] In defense of overcharging, it has been argued that in order to obtain a plea bargain that results in a lower sentence than the prosecutor's original position, while still obtaining a penalty that promotes public safety, the prosecutor must select an initial charge higher than is penologically appropriate.^[5]

Although theoretically, overcharging is impermissible, courts are reluctant to dismiss charges that are supported by probable cause.^[6] American Bar Association guidelines discourage overcharging, but do not prohibit it.^[7] It has been said that rules aimed at combating prosecutorial vindictiveness that force prosecutors to justify any distinct indictments brought subsequent to an initial charge raise the possibility of overcharging.^[8] It has been argued that restrictions on the current practice of plea bargaining would most likely result in a reduction in overcharging by the prosecutor.^[9]

References

1. ^ Angela J. Davis (2007). Arbitrary justice: the power of the American prosecutor. JSTOR 2379810. 
2. ^ K Kipnis (1976), Criminal Justice and the Negotiated Plea, Ethics, JSTOR 2379810 
3. ^ AW Alschuler (1968), Prosecutor's Role in Plea Bargaining, National Criminal Justice Reference Service, http://www.ncjrs.gov/App/publications/Abstract.aspx?id=14629 
4. ^ SF Ross (1978), Bordenkircher v. Hayes: Ignoring Prosecutorial Abuses in Plea Bargaining, California Law Review, JSTOR 3479971 
5. ^ M Tushnet, J Jaff (1985), Critical Legal Studies and Criminal Procedure, Catholic UL Rev., http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/cathu35&section=20 
6. ^ Plea Bargaining: A Shortcut To Justice, JRank, http://law.jrank.org/pages/9227/Plea-Bargaining-Plea-Bargaining-Shortcut-Justice.html 
7. ^ LC Griffin (2000), Prudent Prosecutor, The, Geo. J. Legal Ethics, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/geojlege14&section=18 
8. ^ EJ Maiman (1980), Criminal Procedure-Due Process of Law-Prosecuting Attorneys-When a Prosecutor Adds a Distinct Charge Stemming from the Same Conduct Underlying the Original, U. Cin. L. Rev., http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/ucinlr49&section=46 
9. ^ GT Felkenes (1976), Plea bargaining: Its pervasiveness on the judicial system, Journal of Criminal Justice, http://linkinghub.elsevier.com/retrieve/pii/0047235276900623