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March 19, 2013


The title of this post is the title of this notable new paper by Kyle Graham now available via SSRN. Here is the abstract:

The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry.  These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior.  United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining.

Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices.  The various meanings given to “overcharging,” when the term is defined at all, have made it difficult to ascertain what this practice entails, why it is improper, and who the worst offenders are.  This essay aims to improve the ongoing conversation about overcharging in two ways: first, by disentangling and fleshing out the core meanings of this term; and second, by proposing and then applying some metrics to identify prosecuting authorities that chronically overcharge.

March 19, 2013 at 10:33 PM | Permalink


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I am of the firm opinion that the rape charge against two youths in Jefferson County , Ohio was an overcharge.

A sexual battery accusation and delinquency adjudication* would have been far more appropriate and provided a sanction + the opportunity for rehabilitation.

I apologize ½profusely + ½remorsefully for refusing to bite the “found guilty” egg of Lewis Carroll’s Humpty Dumpty .

* ¿ Does the ½+½=1 count here ? ☺

Posted by: Anon. #2.71828 | Mar 19, 2013 10:45:44 PM

In my experience, overcharging occurs when the prosecutor is trying to coerce a plea. Vertical overcharging occurs when the prosecutor charges a person with death penalty murder and the person is only guilty of manslaughter.
Horizontal overcharging occurs when when a prosecutor charges a person with every crime subsumed or necessarily included within the greater crime. For example, charging a rape defendant with assault, kidnapping, gross sexual imposition, etc. Remember, sometimes the analysis is whether there is a separate animus. (In a contiuous rape, while the defendant may be trying to reach orgasim, anal, oral, and vaginal sex can give rise to separate charges.) Again, the purpose of charging all three is to coerce a plea.

Of course, there is a species of prosecutor who thinks that it is their job to stretch the definition of any crime they can find to cover the conduct of the suspected offender -- this type of overcharging is what I call megalomanical overcharging -- the prosecutor thinks he knows better than the legislature -- this prosecutor never learned or forgot that criminal statutes are to be narrowly construed.

Posted by: ? | Mar 19, 2013 11:15:22 PM

Asking a board dominated by defense types to chime in on "overcharging" is like asking the fourth grade class to chime in on whether they'd like candy for lunch.

Let's face it. There are any number of folk among the inventory of commenters to whom ANY charging is overcharging, since: the defendant was just having a bad day, or is afflicted with the latest brain syndrome, or was driven crazy by racism, dada, dada, dada.

To the extent there is overcharging, let me suggest a solution: Take the fascist prosecutor to trial, where he'll have the burden of getting by all the multiplicity and duplicity motions, and then, with whatever is left, will have to convince 12 neutral strangers, unanimously, that the government has proved every element of each charged offense beyond a reasonable doubt.

If the prosecutor fails to meet that burden as to any charge (even by the vote of a single juror), the defendant walks as to that charge. To the extent the jury convicts, however, then by definition the conduct was not OVERcharged.

"Overcharging" is often simply the pejorative name given to counts that correspond to the defendant's crime spree. If he didn't want ten counts in the indictment, maybe he should have troubled himself to refrain from burglarizng ten houses.

Let's recall a recent, specific example: Jerry Sandusky got convicted on 48 counts (out of slightly more than 50). Does anyone here think that, with all those counts, Sandusky was "overcharged?" If so, please feel free to make the case.

Posted by: Bill Otis | Mar 19, 2013 11:50:07 PM

Not every charge is an "overcharge." But, we again ignore the trial penalty (yes, the former AUSAs on the bench have called it a "plea benefit," but a rose by any other name . . . ).

And we also ignore the insidiousness of using acquitted conduct in sentencing. Even if a defendant can beat 99 of the 100 counts at trial, that single conviction of 100 means all 100 charges can (and most often will) be used to punish. So, again, the trial penalty cannot be ignored -- and it's about more than just those acceptance of responsibility points.

One other note. I've noticed the official DOJ line being that charge bargaining is contrary to Main Justice policy, even as charge bargaining figures into about every plea negotiation I see -- because of overcharging, and the threat of superseding overcharges (often with the additional threat that family will be included in the superseding indictment).

Yes, Mr. Otis, I understand these acts are legal. But there is sometimes a chasm of difference between what's legal, and what is right -- and what encourages rather than discourages confidence in our (broken) justice system.

Posted by: Jay Hurst | Mar 20, 2013 8:34:49 AM

Its not a question of whether the prosecutor can engage in conduct that can be defined as overcharging. Of course they can. Look at Jerry Sandusky's case. Did Pennsylvania realy need to charge him with over 50 counts? Wouldn't Sandusky receive what is in effect the same sentence if he had only been prosecuted for only 10 counts. If so why waste the time, money and have the victims recount the horrible events.

Posted by: ? | Mar 20, 2013 12:50:57 PM

? --

That anyone would use Jerry Sandusky as an example of prosecutorial abuse is a gift beyond any I could have hoped for.

Thank you!

Posted by: Bill Otis | Mar 20, 2013 2:59:24 PM

The way I see it (I did not read the article) is that there are two types of overcharging. The first type is when multiple charges for what is in effect the same crime. This happens often in the child porn context where the person might have 100 illegal pictures and so gets hit with a 100 count indictment. The second kind of overcharging is when the defendant gets hit from 10,000 angles for the same crime. This often happens in fraud cases where there is a charge for money laundering, a charge for fraud, a charge for filing false paperwork, a tax charge, etc etc.

For the record, I too think than Sandusky was overcharged. Would Bill care to explain /precisely/ why he thinks 50 counts were necessary in that case? What did it achieve? I can not see it but maybe he will enlighten me.

Posted by: Daniel | Mar 20, 2013 5:08:22 PM

Overcharging is an intentional false use of the law by a prosecutor for advantage. It is a tactic copied from the Inquisition for church enrichment and empowerment. It has an improper motive, violates due process, and the Rules of Conduct owing candor to the court and to the defendant. It fully justifies e-discovery done on the prosecutor and all supervisors (to my critics of this new, never used, but necessary tactic).

Because of its statutory illegality, it is an intentional tort subject to exemplary damages, were it not for the totally unjustified self dealt immunity from the self dealing hierarchy on the Supreme Court. The sole validation of most of their decisions is at the point of a gun, since they know nothing about 99% of the subject on which they rule.

Girlfriend writes phone message, Call Mike, for drug dealer boyfriend. Mike is another drug dealer. Prosecutor says, is this or is this not your handwriting? We will take your children and adopt them away, because you will be in federal prison for 10 years. We want you to testify against your boyfriend to avoid that fate.

Posted by: Supremacy Claus | Mar 20, 2013 6:47:31 PM

"Girlfriend writes phone message, Call Mike, for drug dealer boyfriend. Mike is another drug dealer. Prosecutor says, is this or is this not your handwriting? We will take your children and adopt them away, because you will be in federal prison for 10 years. We want you to testify against your boyfriend to avoid that fate."

SC: That is not overcharging. What you are describing is extortion. Yes, extortion is punishable under 18 USC 872 and the Hobbs Act 18 USC 1951. I have never seen an AUSA prosecuted for extortion. Maybe Bill Otis knows why.

Posted by: ? | Mar 20, 2013 9:25:25 PM

? --

"I have never seen an AUSA prosecuted for extortion. Maybe Bill Otis knows why."

Ummmm, because a prosecution requires and indictment, and no AUSA has been indicted for the conduct you describe as "extortion"?

Defense types tend to be for the prosecution, sans indictment, of their adversaries. Of course, they are NOT for the prosecution, sans indictment, of any other alleged felon.

This might lead one to suspect that what outrages them is that they keep losing to those hated adversaries. But the reason for this is not AUSA's. The reason is their clientele.

If they want to quite losing, and thus get over their resentment of their opponents, the answer is obvious: Get a better clientele. It will give you a better shot at winning, and therefore at feeling more chipper.

Posted by: Bill Otis | Mar 22, 2013 9:13:47 AM

this would not be a problem!

"We will take your children and adopt them away, because you will be in federal prison for 10 years. We want you to testify against your boyfriend to avoid that fate."

Since any real american would stand on their constutitional right to Kill the AUSA fucked up enough to make a threat like that 3 sec's after the words come out of their mouth!

Threaten my kids...i KILL you! it's that simple. No matter what your job or the costume you have on.

Posted by: rodsmith | Mar 22, 2013 11:32:18 AM

Bill, not being cheeky here. Person takes a phone message to call someone. Is it overcharging to face federal conspiracy charges?

Posted by: Supremacy Claus | Mar 23, 2013 7:53:44 AM


Depends on whether the phone message is known or reasonably believed by the recipient to be part of a pre-existing agreement to break the law. "Conspiracy" is nothing more than willingly being part of a plan to do something illegal, together with an overt act (like delivering a message) to advance that plan.

Posted by: Bill Otis | Mar 23, 2013 12:29:02 PM

Hell bill under that definition we can now legally arrest and charge 1/2 the govt with "conspiracy" to violate the Constitution.

Posted by: rodsmith | Mar 23, 2013 4:17:58 PM

These stories from NPR, NYT, pds always leave out a lot. The more facts I learn about a case, the more I agree with the judge or jury.

You know the race of this person, black. I dont know if whites can be disrespected this way.

There is also an outcome bias. If the call resulted in a massacre,the chargues would fly.

Posted by: Supremacy Claus | Mar 23, 2013 6:53:31 PM

To add to the complexity of utilities.

One is not so sure the kids should grow up in the same house as that of a criminal enterprise. Removal may save their futures and their lives if not in the way of some drive by settling of scores.

So the overcharging may save futures and lives themselves.

Posted by: Supremacy Claus | Mar 24, 2013 8:02:27 AM

As is known to comment readers here, I faced 12 Federal charges at trial in 2011, including conspiracy to launder money (with my spouse), and was acquitted of all charges. It was clear and obvious to ALL involved that my spouse was the REAL target---and that I had NOTHING whatsoever to do with the activities of my spouse. Day after day in the 3 week trial would go by with no mention of me whatsoever. As noted above--by charging ME, the spouse, when All KNEW (and I'm talking about the Fed prosecution team here)that I had nothing to do with activities charged, it was probably considered a sure fire way to get a guilty plea with minimal effort--especially knowing we had minor children.
What spouse in their right mind would let their innocent spouse, that they KNOW is innocent, get an indictment splashed on the front page of the paper and go through the hell that is a complex white collar trial if they could just plead guilty and get it over with? Especially when facing 34 charges themselves? But my spouse wanted to plead NOT guilty-- so in spite of my night terrors (especially after reading appeals if I should fail)and knowing neither of us should plead guilty to crimes we did not feel committed, we went to trial.
The "tacking on" of money laundering charges was devastating and unnecessary.
We were accused of "taking one spouse's name off of an account"--an account that STAYED AT THE SAME ENTITY still under my Name---in our home town. Yep, that's Really clever "money laundering". Then accused of buying a boat (3 SEPARATE charges--the down payment in one month, and the rest of the down payment (from 2 different accounts---but all accounts in my name)in the closing month. As said, I was acquitted, spouse convicted....At sentencing---the judge added FIVE YEARS to spouse's sentence for the money laundering. The charging for the money laundering was unnecessary and overreaching---the devastation continues.

Posted by: folly | Mar 25, 2013 11:13:31 PM

Overcharging is one of the things that makes the American judicial system such a laughingstock. There are numerous high-profile examples of overcharging. Look at the Casey Anthony case. I have no doubt that she was responsible for her daughter's death but the state had a pretty thin case, certainly one that wouldn't prove 1st degree murder. They should have either charged her with 2nd degree murder or, if they felt they couldn't even prove that, then manslaughter. But what does the prosecutor do? Of course they throw everything at the wall and see what sticks, charging her with manslaughter, 2nd degree murder and 1st degree murder for the same victim. In other words they charged her with three mutually-exclusive charges as it is impossible that she could have simultaneously accidentally killed her daughter, killed her on the spur of the moment and killed her in a premeditated fashion. I was so happy when the jury returned a verdict of not guilty though I doubt it will change the prosecutor's behavior one iota. When are prosecutors in this country going to learn that it is both quite unprofessional and immature as well as being highly unethical to use this kind of "shotgun" method of charging defendants?

Posted by: Billy | May 6, 2014 4:06:02 PM

What can you do when overcharging happen. I thought this kind of thing stopped years ago. I have a son that was charged with everything under the sun that was found in a vehicle in which he was a rear seat passenger. The driver and front seat passenger were not charged with the items they found.

Posted by: Jim | May 31, 2014 9:06:52 AM

There is no such thing as a plea deal.however, once the individual has been charged with a particular offense if that indidivual is found not guilty of that offense than it can not be reduced to anything else. Example I do not have enough evidence to convict for murder therefore, the person is considered to be found not guilty without the charge being reduced to a lower offense for plea deal that is double jeopardy of the plea deal offense.

Posted by: Zabrina L Hall | Feb 11, 2018 12:20:44 PM

Overcharged in sentencing voluntary manslaughter has the same definition as self defense and precipitated homicide meaning that the victim had motive and was the cause of his or her own death by being the aggressive. Which means the defendant has the right to protect themselves, their property and and anyone else in the home that is an innocent crime. However, they have been charging people with that offense which the courts are wrong and you can not Max out a first time felon who never been convicted of a felony before their it is overcharged in sentencing. Voluntary manslaughter is a third degree felony which carries one to three years in prison however, the first time felon can not receive the Max of the three years because of mitigation factor.
An the offense carries probation.

Posted by: Zabrina L Hall | Feb 11, 2018 12:50:47 PM

There are different degrees when it comes to the Law agg murder, murder, voluntary manslaughter, manslaughter, reckless homicide, negilence homicide the only ones that are intentionally is agg murder and murder. Although, I can not change someone with murder for protecting themselves if someone is shooting at the person, the person who is being shot at does have the right to shoot back. However, if if a innocent bystander gets shot the first person who started shooting the gun had placed everyone in harms way therefore, I can not charge the second person for shooting because he or she has the right to protect themselves
So, we can not chargesomeone without charging them with a gun if one was used. Again intentionally is knowing your going to take someone life

Posted by: Zabrina L Hall | Feb 11, 2018 1:02:21 PM

Double jeopardy of APA is the person has been sentenced and completed their time to the ESD date whether they received good days or not however, they can not be placed on parole because their is no time remaining on the sentence for the individual to violate or to be sanction for.

Posted by: Zabrina L Hall | Feb 11, 2018 1:08:55 PM

There is no such thing as a non violent offender reason why if I rob you that is violobecause the perpetrators may have to hurt the innocent person while robbing them.fraud aND back checks can be violent by stealing from the person home. That is why involuntary manslaughter is intentionally.

Posted by: Zabrina L Hall | Feb 11, 2018 1:15:31 PM

There is no such thing as a non violent offender reason why if I rob you that is violobecause the perpetrators may have to hurt the innocent person while robbing them.fraud aND back checks can be violent by stealing from the person home. That is why involuntary manslaughter is intentionally.

Posted by: Zabrina L Hall | Feb 11, 2018 1:15:31 PM

A lot of people in Cincinnati Ohio has been overcharged in sentencing. In the state of Massachusetts they gave their Judges 28 years for that and everyone who had knowledge of it in the court system received five years for conspiracy

Posted by: Zabrina L Hall | Feb 11, 2018 1:19:55 PM

In Ohio the code for first time felony sentence is section
13-701 and section 13-702 all first time felony receives mitigation factor if not more than two felony offense involve in the same crime.

Posted by: Zabrina L Hall | Feb 11, 2018 1:27:35 PM

That is the reason for the overcharged in sentencing because the people were charged the inappropriate offense therefore, a lot of people will be released in Ohio either because of innocent, overcharged, and double jeopardy.

Posted by: Zabrina L Hall | Feb 11, 2018 1:31:47 PM

Mitigation, minimum, presumption, Max and agg Max.

Posted by: Zabrina L Hall | Feb 11, 2018 1:44:51 PM

Nevertheless, you all can sue the lawyers for misrepresentation in the overcharged in sentencing.

Posted by: Zabrina L Hall | Feb 11, 2018 1:46:26 PM

Also, violent offender are allowed to have one felony removed from his or her background report.

Posted by: Zabrina L Hall | Feb 11, 2018 1:48:05 PM

It is against the law to charge a person with more than one violent offense for one body.
Example I can not charge someone with murder and reckless homicide for one body. However, both states that someone passed away yet, different.

Posted by: Zabrina L Hall | Feb 11, 2018 1:53:52 PM

In Ohio HB86 was not suppose to have been created through legislation because they were to correct SB2 of more earned good days of five and releasing individual whom has been overcharged in sentencing. However, I believe that if a person does not have mandatory sentence than he or she should say if they would like to be released early on judicial or go to a transition house six months prior to release date. No Judge should not be able to say yes or no only thing people with non mandatory time. An that will release some people from the prison setting as well.

Posted by: Zabrina L Hall | Feb 11, 2018 2:17:00 PM

If I charge someone with a gun, attempts to murder, and murder than dismiss the gun and attempted to murder therefore, the judge has to throw out the murder case also. Defendant not guilty on all charges.

Posted by: Zabrina L Hall | Feb 11, 2018 2:21:43 PM

In Ohio there is a law called Second Chance Act for first time felony however, these people can resume living upon their release and apply for all things they are applicable for although, these people can obtain jobs however, they can not apply for their old job if the offense has been are was job related to the incarceration yet, the individual maybe a first time felon. Also, in the state of Massachusetts for the people who were overcharged in sentencing the offense were removed from the people record without them filing for seal and expungement due to the courts negilence.

Posted by: Zabrina L Hall | Feb 11, 2018 2:45:16 PM

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