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?