Identifying Prosecutors Who Overcharge


Discussions of prosecutorial overcharging often lump several difference practices into one, according to Kyle Graham of the Santa Clara University School of Law, whose recent essay in the Ohio State Journal of Criminal Law classifies and proposes metrics for overcharging.

The essay notes three types of overcharging: the filing of criminal counts without adequate proof, threatening punishment more severe than the crime befits, and the deliberate use of excessive allegations to induce a plea bargain.

To identify individual district attorney's offices that rely on overcharging, Graham mined charge-specific data compiled by the Administrative Office of the United States Courts (AOUSC).

One metric he suggested to identify potentially chronic overchargers, was to track the instances in which the “gun enhancement” charge 18 U.S.C. § 924(c) — often used as a bargaining chip, because it carries a five year mandatory minimum sentence — was dismissed. The charge was dismissed more than 70 percent of the time in the Eastern District of Arkansas and the Southern District of Georgia.

Read an abstract and download the essay here.

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