Do prosecutors overcharge in order to scare defendants?

It’s no secret these days that more criminal cases end up being settled through plea bargains than they do at trials, but why?

There’s likely a lot of different factors at play, but one of those is certainly the broad power of the prosecutor to use his or her ability to overcharge a defendant with numerous crimes. This gives prosecutors leverage to scare defendants into pleading guilty.

Even if defendants aren’t frightened, they still may be under pressure to plead guilty, even when innocent. This is evident in cases where prosecutors offer consequences that involve little or no jail time for guilty pleas. Faced with the risk and uncertain outcome of a trial, many innocent defendants choose to accept the pleas.

Below are some overcharging tactics prosecutors use:

— Charging a “wobbler” crime as a felony even when it could arguably be a misdemeanor, even for first time offenders.

— Filing an excessive number of criminal “counts,” such as a separate charge of possession of drug paraphernalia for each empty baggie found in a defendant’s possession.

— Adding enhanced charges that carry mandatory jail time, like gun possession, even when the gun wasn’t a factor in the actual crime.

— Adding additional counts without adequate proof that the crimes were actually committed or after very minimal investigation.

— Threatening to ask the judge for a more severe penalty than the crime warrants if the defendant insists on going to trial.

Each of these actions gives the prosecutor a monumental amount of bargaining power. In the case of a wobbler crime, the prosecutor can offer to drop the felony to a misdemeanor in exchange for a plea. A case involving hundreds of counts of possessing drug paraphernalia can be whittled down to only a few counts instead. Gun enhancement charges can be dropped and the plea can go forward for the underlying crime alone. The prosecution can agree to recommend a lenient sentence, knowing that the judge will usually go along.

All of these actions, of course, are dependent on whether or not you — the defendant — are willing to accept that plea deal.

Preventing overcharging by prosecutors and helping defendants avoid criminal convictions is your defense attorney’s job. Before you accept a plea to escape what seems like an insurmountable pile of charges, talk to your attorney.

Source: Second Class Justice, “Prosecution,” accessed Jan. 20, 2017

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