Charge Stacking. & Unethical Prosecutorial Misconduct.

'your honor, you can put me in jail for years before I ever commit forced perjury.'
-John Rinaldi.

Prosecutors, Charge Stacking, and Plea Deals Phil Locke
2 years ago
We’ve posted several times on the blog about how prosecutors will “stack charges” against a defendant, thus building a very long potential prison sentence if convicted, and then approach the defendant with a “plea deal” that would result in a guaranteed, substantially reduced charge and sentence if the defendant agrees to plead guilty to the reduced offense. If the defendant takes the deal, the prosecutor doesn’t have to take the case to trial, and possibly not even to a grand jury, both of which are a lot of work and require a lot of time on the part of the prosecutor. This has become absolutely standard practice. The prosecutor will “stack” charges to build such a scary potential sentence, that even actually innocent people will be intimidated into pleading guilty, rather than face what’s called the “trial penalty ” – that very scary long sentence if they should somehow be convicted at trial. Not surprisingly, the nature of the deal offered by the prosecutor will be driven by how strong a case he/she thinks they would have in court – the weaker the case, the better the deal.
Let me also add that the prosecutor has no problem assembling a very long list of charges against you. The penal code has become so vast, and there are so many laws, that there’s a law against practically everything. I suggest that most people are not even aware they’re breaking a law when they do it, because they don’t know the law exists. I swear; I think they could charge you with something for walking down the sidewalk whistling a tune while wearing a blue shirt.



To really understand what happens here, I thought it would be enlightening to provide an example case – albeit hypothetical and totally “made up.” Here’s the scenario: You are out mowing your lawn one day, and find a nest of six baby rabbits at the base of the foundation of your house. Now, the rabbits have been eating and destroying your landscape plants for years, so your first reaction is, “Get the hose and drown them.” But then you think, “No, I’ll do the humane thing; put them in a box, and release them out in the ‘country’.” So you scoop the rabbits into a cardboard box, put it in your car, and drive out to the country.

Now, here’s what happens. You stop by the side of a country road, release the rabbits out into the tall grass, get back in your car, and drive away. A sheriff’s deputy on patrol noticed you dumping something by the side of the road, and he pulls you over. The officer comes up to your car, and asks, “Sir, may I ask what you dumped by the side of the road back there?” You answer, “It was just some rabbits from my yard.” The officer says, “I see. How many?” You say, “Six.” And at this point, the officer says, “Sir, get out of the car. You’re under arrest for interfering with wildlife.”

Now that you’ve been arrested and initially charged, the prosecutor is going to come to you (and your attorney) with a plea deal. This can be even before an indictment, because if he/she can get you to plead guilty now, then he/she doesn’t have to spend time and effort taking the case to a grand jury, much less to trial. In this case (your case) the prosecutor comes to you (your attorney) and says, “This is what I’m charging you with.” The prosecutor then lists the charges and the prison sentences that accompany each:

Interfering with wild life. One count. Six months each count.

Removing wildlife from its natural habitat. Six counts. One year each count.

Placing wildlife in a non-native habitat. Six counts. One year each count.

Use of a motor vehicle for the purpose of interfering with wildlife. One count. One year each count.

Illegal dumping. One count. Three months each count.

Illegally parking on a county road. One count. Three months each count.

[Note: If someone else had helped you do this, there could also be conspiracy charges added.]

Then the prosecutor says: “If you will plead guilty to one count of interfering with wildlife, we’ll see that you get 30 days in jail, with one year probation upon release, and a $500 fine.” When you do the math, you quickly realize you’re facing a possible 14 years in prison versus 30 days and probation. You’re thinking, “This can’t be happening. I don’t think I did anything wrong.” But what would you do? Go to trial and face 14 years in prison? This is the dilemma that many defendants face on a regular basis, and is the primary reason why only 6% of criminal cases ever go to trial. [And for federal cases, it’s only about 3%.]

Granted, this example was completely contrived, and it’s not possible to concoct an example that’s exactly analogous to every individual collection of circumstances, but that’s essentially how it works.