How Can Overcharging Be Ethical?


In his latest Huffington Post column, former Reason writer Radley Balko notes the controversy over special prosecutor Angela Corey's decision to charge George Zimmerman with second-degree murder, as opposed to manslaughter, in Trayvon Martin's death. Given the circumstances in which Zimmerman shot Martin—during a violent struggle in which Zimmerman claims he feared for his life—it seems unlikely that he acted "from ill will, hatred, spite, or an evil intent," as Florida's standard jury instruction for second-degree murder requires. The affidavit supporting Zimmerman's arrest does not clarify that point, saying only that he "profiled" and "followed" Martin, after which "Zimmerman confronted Martin and a struggle ensued." But no matter how questionable a charging decision, Balko points out, it is completely a matter of prosecutorial discretion:

Once charged, a suspect often needs to hire expensive legal representation or, if he can't afford it (and there aren't many people who can pay for representation on a murder charge), request a public defender. It likely means at least temporary incarceration, the posting of bond, and a stigma more damaging than an arrest, but less so than a conviction.

A judge may occasionally dismiss charges due to lack of evidence, but generally speaking, the decision to charge is the prosecutor's. And while police officers can be sued for a wrongful arrest, prosecutors are protected by absolute immunity, meaning that as long as they're performing a prosecutor's duties, they can't be sued.

In a 1940 speech to a gathering of U.S. attorneys, then U.S. Attorney General and future Supreme Court Justice Robert H. Jackson called the power to charge "the most dangerous power of the prosecutor," warning that prosecutors have "more control over life, liberty and reputation than any other person in America." Charging power is an "immense power to strike at citizens, not with mere individual strength, but with all the force of government itself," he said.

Mandatory minimum sentences enhance this power, allowing prosecutors to determine a defendant's punishment by deciding how to charge him, which increases the pressure for a guilty plea in a justice system where cases are rarely resolved by trial. In her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Ohio State University law professor Michelle Alexander notes that prosecutors routinely encourage plea bargains by "overcharging" defendants, making allegations that probably could not be proven at trial (which seems to be what Corey is doing, raising Zimmerman's maximum possible prison term from 15 years to life by charging him with second-degree murder rather than manslaughter). Alexander also observes that a prosecutor "is free to dismiss a case for any reason or no reason at all." This wide discretion, she writes, makes the prosecutor "the most powerful law enforcement official in the criminal justice system."

Prosecutors are not supposed to use this power simply to rack up guilty pleas or convictions, because they are not merely advocates for one side in an adversarial process; they are public officials charged with pursuing justice. As Supreme Court Justice George Sutherland put it in a 1935 case that Balko quotes, a prosecutor is "representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." In this light, how can it be ethical for prosecutors to bring charges they do not sincerely believe are justified by the facts of the case?  

NEXT: Conservative Judge Makes the Case for Judicial Restraint

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  1. it seems unlikely that he acted “from ill will, hatred, spite, or an evil intent,” as Florida’s standard jury instruction for second-degree murder requires.

    Au contraire. The victim was black, and he is not.


    1. Yes. If the victim is black or gay than there is no such thing as overcharging regardless of the circumstances.

      1. quite often true. see, for example: amadou diallo

        1. Yes, it was obvious that they didn’t commit reckless endangerment. He had 41 bullets coming for pulling out his wallet.

          1. it was obvious the cops did not commit murder, but they were overcharged – second degree murder and reckless endangerment

            same syndrome

            1. How did they “not commit murder”?

              1. They are public protectors. Their only motive is to protect the public no matter who gets killed or how much fun they are having.

            2. How was it not reckless endangerment?

  2. “Prosecutors are not supposed to use this power simply to rack up guilty pleas or convictions, because they are not merely advocates for one side in an adversarial process; they are public officials charged with pursuing justice.”

    On which planet?

    1. Let me try again.

      ‘Prosecutors are supposed to use this power simply to rack up guilty pleas and convictions, because they are merely advocates for themselves in an adversarial process; they are public officials charged with pursuing publicity, votes, and advancing their careers.’

      There, now it is all better.

      1. MUCH BETTER

    2. Seriously, my first reaction to that was, and I quote, “BWAHAHAHAHAHAHA!”

  3. You know who else was charged with pursuing justice?

    1. Fugitive slave hunters?

      1. I was thinking of Green Lantern, but yours works, too.

    2. Halle Berry?

  4. In this light, how can it be ethical for prosecutors to bring charges they do not sincerely believe are justified by the facts of the case?

    The light is that they are politicians, as cravenly self-serving and corrupt as any.

  5. Too many words, Jacob. Can’t you just tell me what to think with a clearly-labelled editorial cartoon?

  6. FYI: Your link to Balko’s column goes to some CNN story about child porn.

    1. Here’s the link you’re probably looking for:

      1. Jesus, those comments are a mess. And we think we have it bad here with our MNGs and Tonys and Mary Stack’s various sockpuppets.

        1. Yeah…..

          The commenters there can barely compose sentences or spell correctly. That is the liberal crowd though….notice lots of ads for weight loss scams, celebrity news, and other inane bullshit. You can judge a site without reading it, just look at the ads.

  7. Are grand juries supposed to base their decisions on preponderance of the evidence (as Balko suggests) or on probably cause? Not that grand juries were used int his case.

    1. It goes:

      Arrest – probable cause.

      Indictment – preponderance.

      Conviction – beyond reasonable doubt.

      1. But haven’t they changed the requirement for conviction for certain crimes to merely “beyond reasonable doubt”? Or am I thinking of certain civil cases?

        1. Beyond reasonable doubt is the highest hurdle to overcome, and I think its reserved for criminal trials.

          Civil cases are decided on the preponderance standard.

          Last I checked, anyway.

          1. There’s clear and convincing evidence for some civil, right? I can’t even remember what the heck that is for, anymore.

            1. True, there is a C&C standard for some civil cases. Can’t remember any examples; perhaps quasi-criminal or strict liability?

              1. correct. some admin stuff, parental stuff, etc.

          2. D’oh. I wrote that completely wrong. Scratch that. It should’ve read:

            But haven’t they changed the requirement for conviction for certain crimes to merely “preponderance of evidence”? Or am I thinking of certain civil cases?

            1. no

              but college campuses use that standard (poorly applied) in their kangaroo courts

              1. but college campuses use that standard (poorly applied)

                Yah, you can write a very small script for that one.



                (pretty sure that’s a mishmash, but I’ve learned way too many languages and haven’t coded in almost a decade)

            2. Civil cases are decided on preponderance.

      2. From the US Dept of Justice Grand Jury Manual:

        “You should briefly cover the elements of the offenses charged in the indictment and the standard of proof — probable cause to believe an offense has been committed by the prospective defendants — that covers the return of an indictment.”

        From a grand jury handbook for the federal district court in maryland:

        “The grand jury, on the other hand, does not determine guilt or innocence, but only whether there is probable cause to believe that a crime was committed and that a specific person or persons committed it. If the grand jury finds probable cause to exist, then it will return a written statement of the charges called an “indictment.””

        1. That’s federal, which I did not know was probable cause for indictment.

          I think the states may still have preponderance, but I could be wrong.

          1. Well, it seems some states use preponderance – seems fair enough! The feds need to get in step.

        2. The grand jury thing seems pointless.

          1. Then why do prosecutors go to the trouble of bypassing them? Why bypass a rubber stamp?

            1. Bypassing the grand jury makes grand juries more pointless. Prosecutors are their own rubber stamp, they might as well save time by skipping the grand jury rubber stamp, lest there be some kind of upset.

  8. Overcharging combined with mandatory minimum sentences is a very effective tool for prosecutors to wrack up “convictions” indeed. I know three different people who were involved in separate incidents that I would characterize as drunken mischief. None involved driving a vehicle or injuring others. All were first time offenders and college students/just out of college. All were charged with crimes that would get at least a year and as much as four years in prison on conviction. Each got a plea bargain that reduced their sentences to “only” multi-thousand dollar fines and/or a few days in the county jail. That was on top of the thousands of dollars in lawyer fees and having to post bond.

  9. American prosecutors are pursuing justice. And when they catch that bitch, she’s going to die horribly.

  10. yup . yup. yup.

    balko spot on. reminds me of diallo.

    note that balko correctly agreed with, for example, the BART shooting, as manslaughter NOT murder, which was the average reasonoidz conclusion.

    he is consistent … and correct

    1. And you STILL havent died in a fire? Fuck man, how many goats to I have to sacrifice? I guess I gotta move it up to virgins.

  11. Prosecutors should be barred from negotiating pleas until after arraignment. The charge stated at arraignment should be the only permissible charge unless the prosecutors can verify that they discovered new evidence after that point, which would set a new arraignment for the new charge, while not necessarily cancelling the old one unless it causes a double jeopardy conflict.

  12. Model Rule of Professional Conduct 3.8:

    The prosecutor in a criminal case shall:

    (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; …

    1. Wait until you see the part about them being ethically constrained to provide the defense with any exculpatory evidence they uncover. You’ll laugh and laugh and laugh.

      1. The entire legal system from the Supreme Court on down is a sham that looks good on paper.

    2. “…the code is more what you’d call ‘guidelines’ than actual rules.”

  13. Depending on how big the accused’s balls are (ie, avoiding a plea bargain), do note that overcharging can lead to an acquittal in a case where lesser charges would have gotten a conviction.

  14. Even if Zimmerman intentionally provoked the confrontation that led to the shooting, I don’t see how they’ll get a murder-two conviction either. Man-one will most likely be the highest.

    1. I would guess because the jury will be afraid to do anything else. Even if they can get an unbiased one to begin with.

      Would you want to spend the rest of your life with a target on your back? That’s likely what would happen to the jurors if they let him off…

      1. Let’s not forget about the after-trial race riot.

  15. On the HuffPo article Eyjafjallajokull commented:

    “This is the most informative article I’ve ever read at the Huff Po. In depth analysis with a bit of history thrown in as well. Thank you, I’ve always thought Prosecutors had too much power in our system and cannot be held accountable within it…. an individual against the bast resources of the DA’s office is a huge mountain to climb…

    Thank you. ”

    One more sees the Libertarian light.

  16. Aren’t “ethical” and “prosecutor” antonyms?

  17. come on y’all…this is Florida, the same state that tried pin first degree on Casey Anthony.

  18. That jsut does not make any sense at all dude, I mean none.

  19. I dont think it can be ethical. I mean think about that for a second?

  20. Why does Balko waste his talent on HuffPo?

    1. More eyeballs and less error checking.

  21. It’s incredible to me that these prosecutors are seriously going to waste a huge amount of time and money pursuing a case that they have absolutely no chance whatsoever of winning, simply to appease that gutter rat Al Sharpscum and his lowlife followers.

    1. Notice how quickly their rhetoric changed when the evidence was brought forth.

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