"The ability to control a defendantâs sentencing exposure by manipuÂlating the charges against himâthat is to say, the ability to charge bargainâis widely recognized by scholars as âthe core of prosecutorial power in the United States.â22 The practice itself is simple enough to describe: A criminal defendantâs sentencing exposure is a function of his likelihood of conviction and his likely sentence if convicted. Those two factors, in turn, are heavily influenced by the charges he faces, which define the possible grounds for conviction, the maximum potential sentence, and frequently the minimum sentence as well.23 A charge bargain is thus simply an agreement to replace a higher charge with a lower one in exchange for the defendantâs promise to plead guilty, which guarantees the prosecutor a conviction without the expense of trial.24
Yet while such an exchange may sound like an actual bargain, with each party gaining, to quote the Supreme Court, a âmutuality of advantageâ from the deal,25 most knowledgeable observers describe it as something else: a fundamentally coercive practice (occasionally analogized to torture) that produces involuntary pleas, sometimes to crimes the defendant did not commit.26 The core problem is twofold. First, while defendants always want to minimize their potential sentences, prosecutors rarely want to maximize them, hoping instead to obtain only their preferred sentence, in the most efficient way possible.27 This asymmetry allows prosecutors to trade away âextraâ years of incarceration that the defendant desperately wants to avoid but that the prosecutor doesnât particularly value. As for the second problem: This free leverage is typically overwhelming, because most criminal codes authorize sentences much higher than what a typical prosecutorâor a typical person, for that matterâwould actually want to see imposed in a given case.28 Thus, by threatening a seriously inflated set of charges and then offering to replace it with the charges that she truly desires, the prosecutor is able to control the defendantâs incentive to plead guilty, and with it the outcome of any subsequent ânegotiation.â29 In the aggregate, prosecutors so empowered can obtain more convictions, with longer sentences, at lower costsâall preconditions for mass incarceration.30
In practice, charge manipulation involves three interrelated moves. First, the prosecutor can inflate the quantity of charges the defendant faces, by piling on overlapping, largely duplicative offensesâincreasing with each new charge the defendantâs potential sentence, his risk of conviction, and the âsticker shockâ of intimidation that accompanies a hefty charging instrument.31 Second, the prosecutor can achieve similar effects by inflating the substance of the charges themselves, overreaching beyond what the law, the evidence, or the equities of the case support.32 Finally, after deploying these tactics to âjack up the threat value of trial,â33 the prosecutor can capitalize on the ensuing leverage by sliding down from her initial threat to the lower set of charges that she actually prefers. Indeed, it is the difference between the threat and the subsequent offer that constitutes the prosecutorâs power: The larger the differential, the more likely the defendant is to plead guiltyâwhether he is in fact guilty or not.34 person, for that matterâwould actually want to see imposed in a given case.28 Thus, by threatening a seriously inflated set of charges and then offering to replace it with the charges that she truly desires, the prosecutor is able to control the defendantâs incentive to plead guilty, and with it the outcome of any subsequent ânegotiation.â29 In the aggregate, prosecutors so empowered can obtain more convictions, with longer sentences, at lower costsâall preconditions for mass incarceration.30
In practice, charge manipulation involves three interrelated moves. First, the prosecutor can inflate the quantity of charges the defendant faces, by piling on overlapping, largely duplicative offensesâincreasing with each new charge the defendantâs potential sentence, his risk of conviction, and the âsticker shockâ of intimidation that accompanies a hefty charging instrument.31 Second, the prosecutor can achieve similar effects by inflating the substance of the charges themselves, overreaching beyond what the law, the evidence, or the equities of the case support.32 Finally, after deploying these tactics to âjack up the threat value of trial,â33 the prosecutor can capitalize on the ensuing leverage by sliding down from her initial threat to the lower set of charges that she actually prefers. Indeed, it is the difference between the threat and the subsequent offer that constitutes the prosecutorâs power: The larger the differential, the more likely the defendant is to plead guiltyâwhether he is in fact guilty or not.34
To make these three moves more concrete, consider a straightforward example, to which we will return throughout the discussion to follow: Imagine a defendant suspected of approaching someone on a street corner at night, of pointing a gun at that person, of ordering them to move a few steps to the left (out from under a streetlamp), and, finally, of taking their wallet and running off with it. To any lay observer, the crime alleged here is straightforward: armed robbery. And yet, in practice, a prosecutor could and routinely would commence a prosecution against such a defendant by piling on a host of additional charges, including (to list just some examples) aggravated assault, theft, threats, possession of a weapon, and using a firearm during a crime of violence.35 Moreover, given the defendantâs alleged command to move out from under the streetlamp, the prosecutor might also overreach, tacking on the far more serious but questionably applicable charge of kidnapping for good measure.36 Finally, bringing her leverage to bear, the prosecutor would then offer to slide down from these inflated charges to the charge that sheâand she aloneâdeems appropriate, based on her personal assessment of the evidence and of the defendantâs culpability: Plead guilty to a single count of armed robbery, she tells the defendantâor, even more enticingly, to misdemeanor counts of theft and possession of a weaponâand everything else will go away.37"
https://columbialawreview.org/content/the-hidden-law-of-plea-bargaining/
Plea bargaining is a croc ripe for abuse
