# Lawyer Dopers: Remedy for Prosecutor Overcharging Crimes **URL:** \ **Category:** In My Humble Opinion\ **Created:** [November 19, 2013, 7:29pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286 "2013-11-19T19:29:40Z")\ **Posts on this page:** 19\ **Page:** 1
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 19, 2013, 7:29pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/1 "2013-11-19T19:29:40Z")
Ok doper lawyers. Here’s a hypo (and it is a hypo because as a new lawyer, I’m not ready to take on something of this magnitude) Suppose I live in Anyville, Any State (AS) Any State has a vaguely worded law that calls an act terrorism if the result of it could bring about public panic or the like (“Public Terrorism Law”) Under the guise of this law any person arrested for a random bar fight or public drunkenness who is screaming and yelling is charged with Felony Public Terrorism and has to post a substantial bond to get out of jail. Their name is published in the paper and made to look like the next John Walker Lindh. Then when the storm dies down, the suspect is offered a plea to (what they should have been charged with anyways) battery, disturbing the peace, or public drunkenness with a minor fine. Everyone takes this deal because the alternative is a possible felony conviction with a prison sentence, even though the law is likely void for vagueness, at least as applied to their situation. The net effect is that nobody gets a fair trial for battery, disorderly conduct, or public drunkenness. They are, in effect, coerced into a guilty plea because the felony trial is not a hill on which any sane person is ready to die on. Therefore the city continues to bring this charge. I consider this to be a deprivation of civil rights under color of law, Section 1983. Is such a lawsuit likely to succeed? What type of facts would need to be proven? ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [November 19, 2013, 7:36pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/2 "2013-11-19T19:36:47Z")
I apologize if I’m missing something, but if part of the premise is that the statute itself is unconstitutional, it seems to me that the remedy is to have the statute overturned via a direct challenge and the rest takes care of itself. What prevents that from happening? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 19, 2013, 7:41pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/3 "2013-11-19T19:41:58Z")
> [@Jimmy\_Chitwood](#): > > I apologize if I’m missing something, but if part of the premise is that the statute itself is unconstitutional, it seems to me that the remedy is to have the statute overturned via a direct challenge and the rest takes care of itself. What prevents that from happening? The statute has never been challenged because anyone with standing to challenge it pleads out to a misdemeanor. Plus, it may not be facially invalid, but only invalid as to minor disorderly acts. ---
**Author:** ![kayaker](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kayaker/32/441_2.png) [@kayaker](https://boards.straightdope.com/u/kayaker)\ **Post date:** [November 19, 2013, 7:52pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/4 "2013-11-19T19:52:34Z")
IANAL, but isn’t what the OP describes SOP? Anyone I know that has been “in trouble with the law” has been initially threatened with a laundry list of outrageous charges, then later the opportunity of pleading to lesser charges is offered. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 19, 2013, 7:58pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/5 "2013-11-19T19:58:59Z")
> [@kayaker](#): > > IANAL, but isn’t what the OP describes SOP? Anyone I know that has been “in trouble with the law” has been initially threatened with a laundry list of outrageous charges, then later the opportunity of pleading to lesser charges is offered. Generally, yes, but that “laundry list” is actually supported by evidence. Like the woman in the video that was all over the news in New Mexico that the cops shot at with 5 kids in the car. She was charged with a list of things that could possibly get her 100 years in prison. Prosecutors look at that in good faith (generally) and see that she shouldn’t get 100 years in prison and knock off a few of the charges and let her plead to what will be an acceptable punishment. In the OP, I am talking about one single event A that is historically punished by charge B which is customarily punished by a small fine. A law is passed that is so vague that in may encompass A in its breadth, and the prosecutor, in bad faith, charges all event As under the new charge, and within weeks offers a plea deal to charge B. This is done purposefully so that no fair trial is ever held on charge B. I see a huge difference between the two scenarios. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [November 19, 2013, 8:35pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/6 "2013-11-19T20:35:05Z")
> [@jtgain](#): > > …In the OP, I am talking about one single event A that is historically punished by charge B which is customarily punished by a small fine. A law is passed that is so vague that in may encompass A in its breadth, and the prosecutor, in bad faith, charges all event As under the new charge, and within weeks offers a plea deal to charge B. This is done purposefully so that no fair trial is ever held on charge B. > > I see a huge difference between the two scenarios. I’m not sure what constitutes “bad faith” on the part of the prosecutor in this scenario. Is it charging under a statute that the prosecutor believes is unconsitutional on its face? Is it charging under a statute that the prosecutor believes is not applicable to the crime? Is it using the most draconian punishments available to leverage a plea for something that the prosecutor doesn’t believe conceivably merits such sever punishment? It seems, given the vague nature of the law and its apparent breadth, it would be extremely difficult to prove bad faith on the part of an individual prosecutor. If the legislature deliberately writes a law that encourages prosecutors to wave it around like a club, is it ‘bad faith’ to use it as they intend? ---
**Author:** ![robert\_columbia](https://avatars.discourse-cdn.com/v4/letter/r/e79b87/32.png) [@robert\_columbia](https://boards.straightdope.com/u/robert_columbia)\ **Post date:** [November 19, 2013, 8:40pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/7 "2013-11-19T20:40:33Z")
> [@Boyo\_Jim](#): > > … If the legislature deliberately writes a law that encourages prosecutors to wave it around like a club, is it ‘bad faith’ to use it as they intend? Another option is to elect non-asshole legislators. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [November 19, 2013, 8:55pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/8 "2013-11-19T20:55:16Z")
> [@jtgain](#): > > Ok doper lawyers. Here’s a hypo (and it is a hypo because as a new lawyer, I’m not ready to take on something of this magnitude) > > Suppose I live in Anyville, Any State (AS) > > Any State has a vaguely worded law that calls an act terrorism if the result of it could bring about public panic or the like (“Public Terrorism Law”) > > Under the guise of this law any person arrested for a random bar fight or public drunkenness who is screaming and yelling is charged with Felony Public Terrorism and has to post a substantial bond to get out of jail. Their name is published in the paper and made to look like the next John Walker Lindh. > > Then when the storm dies down, the suspect is offered a plea to (what they should have been charged with anyways) battery, disturbing the peace, or public drunkenness with a minor fine. Everyone takes this deal because the alternative is a possible felony conviction with a prison sentence, even though the law is likely void for vagueness, at least as applied to their situation. > > The net effect is that nobody gets a fair trial for battery, disorderly conduct, or public drunkenness. They are, in effect, coerced into a guilty plea because the felony trial is not a hill on which any sane person is ready to die on. Therefore the city continues to bring this charge. > > I consider this to be a deprivation of civil rights under color of law, Section 1983. Is such a lawsuit likely to succeed? What type of facts would need to be proven? Well, first: I assume you’d bring your suit against the prosecutor? But prosecutorial immunity would effectively bar that claim, I would think. Second: I would want more information about the statute. Is your problem that it’s called “Terrorism” instead of “breach of peace”? Or that you don’t think there should be a felony breach of peace statute (I’m assuming that’s basically what this is)? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 19, 2013, 9:04pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/9 "2013-11-19T21:04:55Z")
> [@Boyo\_Jim](#): > > Is it charging under a statute that the prosecutor believes is not applicable to the crime? > > Is it using the most draconian punishments available to leverage a plea for something that the prosecutor doesn’t believe conceivably merits such sever punishment? A mix of these. > [@Boyo Jim](#): > > It seems, given the vague nature of the law and its apparent breadth, it would be extremely difficult to prove bad faith on the part of an individual prosecutor. If the legislature deliberately writes a law that encourages prosecutors to wave it around like a club, is it ‘bad faith’ to use it as they intend? First, I don’t think the legislature intended it. It was passed as a knee jerk to 9/11 and is clearly meant for “I will detonate a bomb on Main Street to protest the U.S. tolerance of immoral women” type of public panics. Second, I think the prosecution is deliberately hiding behind the vagueness and lack of a ruling on the constitutionality to charge many people with it. I agree that proof would be very hard, but lets say that EVERYONE charged under this act was plead down to a fine within weeks. Or would some other proof be necessary? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [November 19, 2013, 9:05pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/10 "2013-11-19T21:05:01Z")
> [@jtgain](#): > > I consider this to be a deprivation of civil rights under color of law, Section 1983. Is such a lawsuit likely to succeed? What type of facts would need to be proven? You can’t sue the prosecutors, who are immune. If it’s a county prosecutor, you can sue the office if you can prove deliberate indifference on the part of the county. In theory, if you somehow had evidence that they were deliberately charging people with crimes they did not believe they had probable cause for (or for crimes that would not withstand constitutional scrutiny), or even better training prosecutors to do so, then it would be a winning 1983 case. But the practical hurdles to such proof would be nigh insurmountable. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 19, 2013, 9:08pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/11 "2013-11-19T21:08:13Z")
> [@Richard\_Parker](#): > > You can’t sue the prosecutors, who are immune. If it’s a county prosecutor, you can sue the office if you can prove deliberate indifference on the part of the county. > > In theory, if you somehow had evidence that they were deliberately charging people with crimes they did not believe they had probable cause for (or for crimes that would not withstand constitutional scrutiny), or even better training prosecutors to do so, then it would be a winning 1983 case. But the practical hurdles to such proof would be nigh insurmountable. I agree with this. What type of proof would be necessary? Or should we just leave out the “nigh” part? 🙂 ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [November 19, 2013, 9:11pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/12 "2013-11-19T21:11:47Z")
> [@jtgain](#): > > I agree with this. What type of proof would be necessary? Or should we just leave out the “nigh” part? 🙂 Well, we can imagine something like a powerpoint presentation given to new prosecutors suggesting that they always charge terrorism when it vaguely fits, with a slide explaining that they think the statute is unconstitutional but that it’s useful to get people to plead. That’s the sort of thing the New Orleans prosecutors may well have. (Just kidding, they don’t do any training at all.) But apart from that kind of smoking gun, I gather that your question is about what kind of circumstantial evidence might be sufficient proof. And I doubt there is any since the essential question concerns the mental state of the people responsible for the offending prosecutors. And even if there’s a pattern of charges without PC, for example, the lack of actual challenges would probably mean under the Supreme Court’s crazy protective doctrine that they wouldn’t be held liable. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 19, 2013, 9:18pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/13 "2013-11-19T21:18:25Z")
Why can’t the assistant prosecutors be sued under 1983? They are acting under color of state law as well. I realize that respondeat superior doesn’t apply in 1983 cases, but why is it only the elected Prosecuting Attorney that can be held liable? Sheriff’s deputies, for example, can be held liable. And you don’t think, say, 3,000 charges of which 2,930 were all plead down to misdemeanors would be sufficient circumstantial evidence of intent? (made up numbers) ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [November 19, 2013, 9:21pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/14 "2013-11-19T21:21:18Z")
No individuals can be liable. Not because of 1983 but because of prosecutorial immunity. The elected official can be sued in his official capacity, but then he is just standing in for the official body and any damages must be paid by that body. Counties and cities can be sued because they are not entitled to sovereign immunity, but their liability requires proof of deliberate indifference. And no, I don’t think a high percentage of plead-downs, without more, would be sufficient circumstantial evidence of intent. You’d need to have some kind of evidence to rule out alternative hypotheses. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [November 19, 2013, 9:28pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/15 "2013-11-19T21:28:17Z")
I said “intent” there but that’s a poor shorthand for what you actually have to prove, which is deliberate indifference. In this context, that usually means that they had an official policy to wrongly charge people or that they knew of a pattern of bad charges and did nothing to stop it. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [November 19, 2013, 9:36pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/16 "2013-11-19T21:36:03Z")
> [@Richard\_Parker](#): > > No individuals can be liable. Not because of 1983 but because of prosecutorial immunity. > > The elected official can be sued in his official capacity, but then he is just standing in for the official body and any damages must be paid by that body. Counties and cities can be sued because they are not entitled to sovereign immunity, but their liability requires proof of deliberate indifference. > > And no, I don’t think a high percentage of plead-downs, without more, would be sufficient circumstantial evidence of intent. You’d need to have some kind of evidence to rule out alternative hypotheses. My memory is iffy on this, but I was certain there was exceptions to the prosecutorial immunity and individuals. I remember a case where a prosecutor singled out blacks for prosecution in the late 1960s and was slapped with a 1983 suit. I know it’s not the same, but it shows a dent in the armor. What if instead of my hypo, the assistant prosecutor was prosecuting blacks only for a certain crime and no one else. The elected prosecutor had a “hands-off” managerial approach, but he issued weekly memos about racial equality. No remedy at all? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 19, 2013, 9:39pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/17 "2013-11-19T21:39:25Z")
> [@Richard\_Parker](#): > > Counties and cities can be sued because they are not entitled to sovereign immunity, but their liability requires proof of deliberate indifference. I don’t have time to look up the citations right now, but I am virtually certain this is not true in Virginia. Counties, at least, have the state’s sovereign immunity and can’t be sued in tort – or for contractual obligations, come to it – unless permitted by statute. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [November 19, 2013, 9:41pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/18 "2013-11-19T21:41:29Z")
> [@jtgain](#): > > My memory is iffy on this, but I was certain there was exceptions to the prosecutorial immunity and individuals. I remember a case where a prosecutor singled out blacks for prosecution in the late 1960s and was slapped with a 1983 suit. > > I know it’s not the same, but it shows a dent in the armor. There are exceptions, but they all relate to doing something non-prosecutorial in relation to the exercise of prosecutorial functions–like prosecuting someone because you received a bribe. I don’t think straight-up racist exercise of prosecutorial discretion would qualify for an exception. There may be statutes that expressly remove prosecutorial immunity (under state law, most likely). But 1983 does not. > [@jtgain](#): > > What if instead of my hypo, the assistant prosecutor was prosecuting blacks only for a certain crime and no one else. The elected prosecutor had a “hands-off” managerial approach, but he issued weekly memos about racial equality. No remedy at all? I think assistant prosecutor is immune. But the prosecutor’s office (elected prosecutor) cannot necessarily avoid a claim of deliberate indifference by saying he had a hands-off approach and issuing memos. If he knew or should have known about the ADA, and saw that his memos were ineffective, then the office could be held liable for doing nothing. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [November 19, 2013, 10:05pm UTC](https://boards.straightdope.com/t/lawyer-dopers-remedy-for-prosecutor-overcharging-crimes/674286/19 "2013-11-19T22:05:40Z")
> [@Bricker](#): > > I don’t have time to look up the citations right now, but I am virtually certain this is not true in Virginia. Counties, at least, have the state’s sovereign immunity and can’t be sued in tort – or for contractual obligations, come to it – unless permitted by statute. I was speaking as to a 1983 suit under federal law. In that context, counties and other sub-state level entities lack both the common law and the Eleventh Amendment defense of sovereign immunity. It becomes more complicated for suits to enforce state law. States usually have a Tort Claims Act of some kind that sets up the structure of state law concerning sovereign immunity, and if not then their common law of sovereign immunity controls. But that is not about the Eleventh Amendment.