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Overcharging (law)

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Overcharging, in law, refers to a prosecutorial practice that involves "tacking on" additional charges that the prosecutor knows he cannot prove.[1] It is used to put the prosecutor in a better plea bargaining position.[2] The term has been defined in different ways. Alschuler writes that "to prosecutors, overcharging is accusing the defendant of a crime of which he is clearly innocent to induce a plea to the 'proper' crime. Defense counsel identify two types of overcharging. 'Horizontal' overcharging is the unreasonable multiplying of accusations against a single defendant. He may be either charged with a separate offense for every technical criminal transaction in which he participated, or the prosecutor may fragment a single criminal transaction into numerous component offenses. 'Vertical' overcharging is charging a single offense at a higher level than the circumstances of the case seem to warrant."[3] Vertical overcharging is deemed to be the more abusive of the two practices.[4] In defense of overcharging, it has been argued that in order to obtain a plea bargain that results in a lower sentence than the prosecutor's original position, while still obtaining a penalty that promotes public safety, the prosecutor must select an initial charge higher than is penologically appropriate.[5]

Although theoretically overcharging is impermissible, courts are reluctant to dismiss charges that are supported by probable cause.[6] American Bar Association guidelines discourage overcharging, but do not prohibit it.[7] It has been said that rules aimed at combating prosecutorial vindictiveness that force prosecutors to justify any distinct indictments brought subsequent to an initial charge raise the possibility of overcharging.[8] It has been argued that restrictions on the current practice of plea bargaining would most likely result in a reduction in overcharging by the prosecutor.[9]


  1. ^ Angela J. Davis (2007). Arbitrary justice: the power of the American prosecutor. Oxford University Press. ISBN 978-0-19-517736-7.
  2. ^ K Kipnis (1976), "Criminal Justice and the Negotiated Plea", Ethics, 86 (2): 93–106, doi:10.1086/291984, JSTOR 2379810, S2CID 159804955
  3. ^ AW Alschuler (1968), Prosecutor's Role in Plea Bargaining, National Criminal Justice Reference Service
  4. ^ SF Ross (1978), "Bordenkircher v. Hayes: Ignoring Prosecutorial Abuses in Plea Bargaining", California Law Review, 66 (4): 875–883, doi:10.2307/3479971, JSTOR 3479971
  5. ^ M Tushnet, J Jaff (1985), Critical Legal Studies and Criminal Procedure, Catholic UL Rev.
  6. ^ Plea Bargaining: A Shortcut To Justice, JRank
  7. ^ LC Griffin (2000), Prudent Prosecutor, The, Geo. J. Legal Ethics
  8. ^ EJ Maiman (1980), Criminal Procedure-Due Process of Law-Prosecuting Attorneys-When a Prosecutor Adds a Distinct Charge Stemming from the Same Conduct Underlying the Original, U. Cin. L. Rev.
  9. ^ GT Felkenes (1976), Plea bargaining: Its pervasiveness on the judicial system, Journal of Criminal Justice
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