"Prosecutors are trained to charge cases using the maximum allowable number of criminal statutes, with preference always given to the statutes with the highest maximum term of imprisonment," he writes.
I have discussed plea bargaining in this previous post, but specifically wanted to address charging decisions here. Charging decisions vary widely by office. At the Bronx DA's Office, criminal prosecutions are most often handled in a horizontal manner, meaning one ADA indicts the case in the grand jury and another ADA handles the case through trial. Currently, I work in a vertical prosecution office, where I handle the case from beginning to end. (Check this post out for a more detailed explanation).
The difference in the manner of prosecution makes all the difference in the charging decision. In a horizontal prosecution, the grand jury ADA will generally indict all possible crimes, from the highest charge to the lowest, to allow the more senior trial ADA the freedom to choose which theories to try the case under. If the crime is not charged in the grand jury, it cannot be submitted to a trial jury (unless it is a lesser included offense). In a vertical office, there are usually only one or two charges per criminal act in the indictment. The ADA already knows everything about the case and can see what theory to try it under.
In both cases, however, the offices have worked under the theory that they will only indict a defendant on the highest charge we can prove at trial. This means that we do not use an indictment as a bargaining chip, charging crimes we know we cannot prove so that we can get a plea deal. I'd argue that a prosecutor who does that is unethical. In fact, I rarely offer a post-indictment plea because we have analyzed the case and determined the highest charge before indictment. We then plea bargain from the highest sustainable charge at trial, which is rarely what the police initially charged.
There are in fact many cases where we undercharge, but that usually deals with proof problems. That's the reason a trespass in a home and a larceny is handled like a misdemeanor, not a felony burglary.
Mr. Abramson says that many of the criminal cases that go to trial would get resolved prior to it if the prosecutor had made a just offer. A just offer depends on which side of the courtroom a person is on. An example is a 17 year old who beats an elderly man almost to death, but does not have a prior record. What is a just offer for the defendant, the victim, and society? What about a 60 year old who has a gun illegally, but has been law-abiding all his life? Should he get treated differently than a 20 year old caught with an illegal gun? There are no easy answers in any criminal case.
The article is meant to be thought provoking and give insight into the criminal justice system. It does it very well, but as much as this blog is slanted because of my perspective from the prosecution side, so is the article tilted from the defense side. I have seen many a judge acquit a defendant or suppress evidence because an officer lacked credibility. In fact, the choice between a jury or judge trial will depend on the jurisdiction. In New York City, it is far more advantageous for a defendant to be tried by a jury than a judge. In smaller, less diverse cities, a judge is more likely to acquit than a jury.
There are so many issues brought up in the article--overly broad statutes, alternative sentencing, the disparity in incarceration between ethnic groups--but I must save some for another post. This terrific article came to my attention from a follower who asked for comments on it. Please feel free to comment, email, or tweet questions!