Mimesis Law
23 May 2019

Should Prosecutors Pay An Overcharge Trial Tax?

November 4, 2016 (Fault Lines) — If there are any two words to bring joy and gladness to a law and order Republican’s heart, it’s “tort reform.” Tort reform, the theory goes, protects people and businesses from frivolous litigation that unfairly eats up resources. It brings down medical costs by letting doctors be doctors. It drives those damn lawyers out of business. It’s the closest real-world equivalent to unicorn tears, in other words.

One common innovation in states that have adopted tort reform is a “settlement tax.” In Georgia, for instance, if a defendant offers a plaintiff a reasonable amount of money before trial, and then at trial the plaintiff gets considerably less, the plaintiff must pay attorney’s fees. He got greedy, after all.

Similarly, a defendant who turns down a reasonable settlement offer from the plaintiff, only to be socked with a whopper of a verdict, then has to pay attorney’s fees on top. The system has a grand way of deterring civil cases from going to trial.

We’re all familiar with a similar system at play in criminal defense, of course. After a defendant is convicted at trial, it’s not uncommon for a judge to ask how much time was offered beforehand. If it was a reasonable offer, that’s all the more reason to stick the defendant with a harsh sentence for unreasonably sticking to his guns. Out in the world of us deplorable aiders and abettors, we call that a “trial tax.”

But there is no meaningful equivalent for prosecutors. Every incentive in our system, including the written guidelines for the Department of Justice, encourages prosecutors to charge the most serious crime they can imagine on the facts. That provides more leeway in bargaining and increases the odds that even an innocent defendant will be convicted of something.

After all, what’s the downside risk? The worst thing that could happen is a directed verdict, or an acquittal and a juror who complains about taxpayer dollars wasted. Generally speaking, that’s not a huge deterrent. And the flip-side is all that sweet media coverage when you win at trial and get a 1,503 year sentence.

Isn’t it time that we started adopting some of the better ideas of the civil world into our criminal justice system? After all, settlement, i.e. plea bargaining, has become the central fixed star of our courts. Why not also create a reason for prosecutors not to object to reasonable settlements?

Take your classic voluntary manslaughter case, for instance. A man stumbles home to find his wife in bed with the handsomer brother he always envied. Violence ensues, and somebody ends up dead. Now your average prosecutor will take that textbook voluntary manslaughter case and charge murder, knowing that he will likely be able to get a favorable plea before trial, and that even if you’re convicted on only the lesser count, you’re likely to get the maximum possible sentence as penance for asserting your rights.

So why not flip that equation? In a system rife with mandatory minimums and easily achievable maximums, why not create a rule that says that if defendants are acquitted of a greater charge, the minimum and maximum for the lesser charge is cut in half? That would create meaningful incentives for a prosecutor to reduce his case down to the most easily provable charge.

More to the point, it might actually let some good come to a defendant when a jury, paralyzed over the issue of reasonable doubt, decides to split the baby and pick a middle range. Suddenly, a defendant who might have faced a stiff mandatory minimum despite the jury’s uncertainty might be able to get out into the world at some point.

As it stands right now, there is a growing consensus that the problem of over-incarceration in this country has not been solely the responsibility of broken windows policing and eagerly tough on crime legislatures. Rather, it has come from prosecutors taking what once would have been simple misdemeanor cases and charging them to the hilt.

Tort reform became a cause celebre among the conservative crowd because the perception existed that dirty, ambulance-chasing lawyers had nothing to lose by pursuing a case. At worst, they’d get the nuisance value out of it, and at best, a sizeable jury verdict. Regardless of the merits of this position, it has a certain logic that has resonated with state legislatures.

Prosecutors enjoy similar costless benefits. Losing a case costs nothing. Losing a top charge costs nothing. Even the most frivolous criminal charge carries, at worst, the prospect of being mildly embarrassed on social media. If we truly believe we can deter bad behavior by creating costs for losing parties, there’s no good reason to keep the government out of the fun.

2 Comments on this post.

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  • Nathan
    5 November 2016 at 9:55 am - Reply

    The fact that the case got to trial means a grand jury and/or a judge already determined there was sufficient evidence to get there. That’s a big argument against claims of overcharging. And any plea bargain is less than the people, through the legislature, said this defendant should have gotten in the first place, so what’s he complaining about? By this thinking, any plea offer was inherently reasonable. Plus, people do get acquitted when prosecutors had a good case.

    But you raise the reason why this won’t work: The outcome of the case costs the prosecutor nothing either way. A reduced sentence for proving one but not another charge is no worse than losing the whole thing.

    For an proposal like this to work, there must be something at stake. As it happens, there is.

    Debates about plea bargaining policy frequently assume that the sentence being bargained over is what matters to the prosecutor. It isn’t, really. It matters to the defendant deeply, but the prosecutor’s life will not be affected one iota if she agrees to three years or ten. Ditto if the sentence gets undercut by a judge post-verdict.

    Ignoring the effects of office policies and supervisors tying their hands, and laws restricting lawful pleas after an indictment, the prosecutor’s decision is driven by her own judgment of what the offense is “worth.”

    The defense’s bargaining power comes not from any ability to affect the prosecutor, but in the ability to change her judgment of what the case is worth.

    The prosecutor’s valuation is personal, and depends on any number of factors. Maturity, perspective, and a sense of fairness are one thing. But there are also such things as how much they want a trial under their belt. Or the fun or awesomeness or prestige of trying this particular trial. Or the extent this case matters to her. Or the need to maintain a reputation for not backsliding, so future offers are taken seriously. Or emotional outrage, vindictiveness, drive for retribution, even sadis. Or simply an in-over-her-head inability to make a judgment call in the first place. There are as many motivations as there are prosecutors, and you play the hand you’re dealt.

    The only real deterrence to prosecutors abusing their discretion is to call them on it professionally. Refusing to exercise discretion is an abuse of that discretion, too. We give it to them for a reason, so the unbelievable powers don’t result in injustice. Make a stink about this very real ethical obligation.

    Ditto for overcharging. One does not prosecute merely because the police made an arrest, nor just because there’s the bare minimum for p/c, nor even because you know in your gut he’s guilty. You only properly charge once you are persuaded of guilt *and* you can prove it beyond a reasonable doubt.

    Charging without being persuaded of both guilt and proveability is a reckless abuse of the prosecutorial power, and is best deterred by treating it as the ethical lapse it is.

    • Andrew Fleischman
      7 November 2016 at 11:29 am - Reply

      Sorry it took me a bit to respond to your comment. It’s not that I was ignoring you, it was just so thoughtful that it took a bit of time for me to think about it.

      I think the appeal of a sentencing based solution to overcharging is that it gets at exactly the incentive that prosecutors sometimes feel–they believe that a particular person should get the “maximum” sentence. Take the Ross Harris case, where what looks a hell of a lot like negligence is being charged as malice murder. If prosecutors really wanted a risk free way to maximize time, they’d charge murder in the second degree.

      I’m skeptical about calling prosecutors on stuff ethically because it seems so damn. ineffective.Not only are consequences unlikely to follow, but it seems that lawyers who do regularly make the right kind of fuss end up being less persuasive elsewhere in the courthouse.


      My ten month old daughter loves your illustrations. I get a bigger rise out of her with State Lady With a Hammer than the Very Hungry Caterpillar. I can’t wait until she’s old enough to talk about the law with, and I know your books will be a great tool.