A Modest Proposal for Preventing Prosecutors From Overcharging

Scott Greenfield and Gideon have been kicking Glenn Reynolds around the schoolyard because of his ideas for combating overcharging by prosecutors who pile on charges they know they can’t prove. Broadly speaking, Scott and Gid think most of Reynolds’s ideas are silly or dangerous, and they are annoyed that his ideas get so much attention just because he’s a well-known blogger and law professor, even though he doesn’t practice or even teach criminal law.

Personally, however, I think Reynolds makes some good points, especially about the fact that prosecutors face few consequences for overcharging crimes.

As a general rule, everything works better when the people making important decisions have proper incentives to make the right decisions, meaning that they benefit when they are right, and that they suffer consequences when they are wrong. This is the theory underlying free markets, and prosecutors should also be comfortable with it as the theory behind why we punish criminals: To give them incentives to behave better.

I see no reason why this concept couldn’t also be used to solve the problem of overcharging by prosecutors, as long as we can design a procedural mechanism to properly align the incentives prosecutors face when making charging decisions. Since I have an amateur interest in economics — which is in some sense the science of thinking about how people respond to incentives — I’ve been giving this a bit of thought, and I think I have come up with a novel solution: Let’s have the prosecutors whipped.

It would work something like this: Prosecutors should be required to specify their desired sentence when they file charges. Then for every year by which they’ve overcharged the defendant — as determined by the final disposition and sentence of the case — they receive one lash. I believe this will be a strong encouragement for prosecutors to not file charges they cannot support.

There are a couple of wrinkles I still need to iron out. For one thing, even the most honorable prosecutors are bound to lose some of the time, which will result in them being whipped. Since this is a cost of the job that they do not face now, one of the likely effects is that it will become harder to get people to work as prosecutors. Perhaps we will have to raise prosecutors’ salaries to compensate.

Another problem is that this change could initiate a race-to-the-bottom resulting in massive under-charging, with prosecutors reducing their sentencing requests to minimize the chance of being whipped until eventually all defendants are offered one-day sentences with credit for time served (three-day sentences for those arrested on Friday evening.) Perhaps prosecutors’ offices could mitigate this effect through management techniques such as threatening to fire prosecutors who excessively under-charge. There is reason to believe that elected District Attorneys would be willing to make more of an effort to fight under-charging by subordinates than they have historically been willing to make to fight overcharging.^{[citation needed]}

One approach that might mitigate both under-charging and the need to raise prosecutor salaries would be to allow prosecutors exemptions for some initial amount of overcharging. Each year they could be allowed to overcharge up to Y years of prison time without facing the lash. Appropriate values of Y could be determined by analyzing court records and setting the exemption at an appropriate percentile level. For example, setting the exemption at the 80th percentile would mean that 80% of prosecutors would overcharge cases by fewer than the exempted number of years and thus escape the lash entirely. The remaining 20% who exceeded the overcharging limit would still receive appropriate negative reinforcement.

The situation is more complicated when we consider plea bargaining. If prosecutors can be punished for plea bargaining results, it creates an offsetting incentive: For example, a prosecutor who files charges with a request for 20-year sentence would receive fewer lashes for going to trial and winning a 10-year sentence than he would if he offered the defendant a plea to 5-years. This has the effect of reducing the “trial tax” by providing prosecutors with an incentive for less-lenient plea bargains. The extent to which this will offset the reduction in sentences from reduced overcharging is unclear, and may have to be determined empirically. Perhaps overcharging identified by plea bargaining results could be exempt from punishment, or at least discounted substantially.

A note on assumptions: In treating the sentence determined by trial as the “correct” sentence, this proposal is implicitly assuming that the sentencing rules specified by the statutes are the correct and just ideal, and that the courts are applying them properly. Your mileage may vary.