Overcharging (law)

Overcharging, in law, refers to a prosecutorial practice that involves "tacking on" additional charges that the prosecutor knows he cannot prove.{{cite book|title=Arbitrary justice: the power of the American prosecutor|author=Angela J. Davis|year=2007|publisher=Oxford University Press|isbn=978-0-19-517736-7|url=https://global.oup.com/academic/product/arbitrary-justice-9780195177367?cc=fr&lang=en&}} It is used to put the prosecutor in a better plea bargaining position.{{citation|title=Criminal Justice and the Negotiated Plea|author=K Kipnis|journal=Ethics|year=1976|volume=86|issue=2|pages=93–106|doi=10.1086/291984|jstor=2379810|s2cid=159804955}} 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."{{citation|url=http://www.ncjrs.gov/App/publications/Abstract.aspx?id=14629|publisher=National Criminal Justice Reference Service|title=Prosecutor's Role in Plea Bargaining|author=AW Alschuler|year=1968}} Vertical overcharging is deemed to be the more abusive of the two practices.{{citation|title=Bordenkircher v. Hayes: Ignoring Prosecutorial Abuses in Plea Bargaining|author=SF Ross|journal=California Law Review|year=1978|volume=66|issue=4|pages=875–883|doi=10.2307/3479971|jstor=3479971|url=https://scholarship.law.berkeley.edu/californialawreview/vol66/iss4/8 }} 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.{{citation|url=http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/cathu35§ion=20|title=Critical Legal Studies and Criminal Procedure|author=M Tushnet, J Jaff|publisher=Catholic UL Rev.|year=1985}}

Although theoretically overcharging is impermissible, courts are reluctant to dismiss charges that are supported by probable cause.{{cn|date=August 2022}} American Bar Association guidelines discourage overcharging, but do not prohibit it.{{citation|title=Prudent Prosecutor, The|author=LC Griffin|publisher=Geo. J. Legal Ethics|year=2000|url=http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/geojlege14§ion=18}} 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.{{citation|title=Criminal Procedure-Due Process of Law-Prosecuting Attorneys-When a Prosecutor Adds a Distinct Charge Stemming from the Same Conduct Underlying the Original|author=EJ Maiman|publisher=U. Cin. L. Rev.|year=1980|url=http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/ucinlr49§ion=46}} 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.{{citation|title=Plea bargaining: Its pervasiveness on the judicial system|author=GT Felkenes|publisher=Journal of Criminal Justice|year=1976}}