Family Ties and Prosecutorial Overcharging

Prosecutorial discretion is a feature, not a bug, of the criminal justice system. Criminal defense lawyers and defendants have long observed that discretion sometimes leads prosecutors to “overcharge” cases—bringing a greater number of charges, or more severe charges, against individuals than they can prove or than would be in the interests of justice—as a tool to induce guilty pleas. But, reports of the practice have heretofore been largely relegated to anecdote; the line between legitimate exercises of prosecutorial discretion and overcharging is blurry.<br><br>This article uses empirical methods to show that prosecutorial overcharging does exist, focusing on cases involving family members charged as co-defendants or in related cases. The study draws on ten years of criminal court data from Pennsylvania and an original experimental vignette survey to offer the first comprehensive, empirical analysis of overcharging and demonstrate systemic overcharging of family members as compared to non-family groups. The findings reflect that defendants charged alongside family members face significantly more charges, yet are less likely to plead guilty or receive sentences of incarceration, and are more likely to be placed in diversion programs for low-level offenders. Combined with the results of the experimental vignette survey, which suggest that family defendants should actually be more likely to plead guilty than similarly-situated non-family defendants, these results point to systemic overcharging.<br><br>Prosecutors face incentives to overcharge family groups because of the legal differential between evidence necessary to charge and evidence necessary to convict, the breadth of vicarious liability doctrines, and the legality of “wired” plea offers. The study shows these incentives play out in practice. Overcharging of family groups sweeps people into the criminal legal system who do not deserve punishment and creates significant collateral consequences, sometimes at the expense of fairness and proportionality. These are the ties that shackle.