Charge stacking forces convicted to serve extra jail time
25th March 2019 · 0 Comments
By Meghan Holmes
Contributing Writer
In recent years, national advocates for criminal justice reform have mounted a campaign to end charge stacking – the prosecutorial practice of charging a defendant with multiple crimes related to a single criminal offense.
As a result of charge stacking, some first time offenders spend decades in jail for nonviolent offenses. Many defendants also never face a judge or jury – deciding to plead to lesser charges rather than face life in prison, if convicted. Proponents of the practice have a simple explanation for charge stacking – criminals end up in jail quickly and with little resistance. Others position charge stacking as part of an increase in prosecutorial power in the wake of “three-strikes” laws, which has led to an increase in incarceration nationwide.
“With the passage of ‘three-strikes’ laws, every additional charge can carry a mind boggling number of years in jail,” said Danny Engelberg, Chief of Trials at the Orleans Parish Public Defenders Office. “The power of sentencing is also taken out of the judge’s hands, so there’s an increase in a prosecutor’s power. With each additional charge there is also a commensurate bond obligation, meaning that defendants are more likely to be sitting in jail pre-trial and unable to help their defense attorney. That also beats people down, and is part of the story in addition to the reality of a virtual life sentence potentially hanging over someone’s head.”
Engelberg said the practice is common in Orleans parish, but not unique to this area.
“I would say this is a regular occurrence that is part of a prosecutor’s leverage. Another way to maximize leverage is overcharging,” Engelberg said. “Rather than charge someone with possession of drugs, they’re charged with distribution. For most people, facing the decades in jail that come along with that charge is an unimaginable risk, so they plead guilty to the lesser charge of possession instead.”
Will Snowden, executive director at the Vera Institute of Justice, agrees that overcharging was common when he was a public defender in Orleans parish, prior to accepting his current position. “We often saw prosecutors overcharge and then whittle down to a lesser charge, likely what they should have charged the defendant with in the first place, during plea negotiations,” he said.
“Three-strikes” laws became popular nationwide in the mid-1990s, partly the result of “tough on crime” rhetoric that led to a significant increase in long-term incarceration for non-violent crimes. Washington and California passed the legislation first, with Louisiana being one of about a dozen other states that followed suit in 1994. The laws vary widely from state to state, but they all mandate lengthy sentences for habitual offenders.
“Prosecutors have been increasing the use of charge stacking in the wake of this legislation, so it’s a relatively recent phenomenon,” Engelberg said. “A common example is when someone has been arrested and accused of stealing a vehicle, they’ll be charged with unauthorized use of a vehicle and possession of stolen property. That’s basically two charges for exactly the same thing. We also see it a lot with domestic disputes, if a husband has been kicked out and breaks in and destroys property in the house he might be charged with felony home invasion rather than a misdemeanor.”
For defendants, additional charges have very real sentencing and bond implications.
“Overcharging and charge stacking leave defendants with a choice between decades in jail, or accepting a lesser charge,” Engelberg said. “This gives prosecutors tremendous leverage that is deeply tied to why we have had so many people in jail for so many years.”
Engelberg emphasized that some prosecutors do not engage in the practice. “There are some reform-minded prosecutors who don’t do this, while there are others who are always going to charge as much as they can,” he said.
Advocates, including the group Seeking Justice for the Innocent and the website Colorsofchange.org, have started an online petition to end the practice of charge stacking nationwide, positioning the issue as particularly relevant to communities of color, where over-policing and implicit bias lead to more arrests and potential prosecutorial misconduct.
“There’s a racial disparity that starts with policing, which by its very nature means that more people of color will be overcharged and have charges stacked against them,” Engelberg said.
In Louisiana, changing “three-strikes” laws has been on the table in recent years as part of other criminal justice reform efforts, but legislation has yet to pass.
“People have proposed changes to sentencing regimes that would reduce our prison population, including changing multiple offender or ‘three-strikes’ laws,” Engel-berg said. “Passing that legislation would be the beginning of having more checks on prosecutorial power, and put sentencing back in the hands of judges, greatly reducing the impact of charge stacking overall.”
This article originally published in the March 25, 2019 print edition of The Louisiana Weekly newspaper.
