Charge Movement and Theories of Prosecutors
Ronald F. Wright
Wake Forest University - School of Law
Rodney L. Engen
North Carolina State University - Department of Sociology and Anthropology
Marquette Law Review, Forthcoming
Wake Forest Univ. Legal Studies Paper No. 1034219
The charges filed at the start of a criminal case often move down to less serious charges that form the basis for a guilty plea and conviction. In this symposium essay, we build on our earlier work on charge movement based on data from North Carolina. After noting that charges move at different rates for different crimes, we explain the differences among crimes by looking to the structure of the substantive criminal law. In particular, our account relies on the concept of -depth- in a criminal code. The depth of a criminal code measures the number of plausible criminal charges that are available to the prosecution and defense as they negotiate a guilty plea. Groups of crimes that offer deeper options to the negotiators (such as the many versions of assault) produce more frequent charge movement.
For a variety of reasons, plea negotiators treat the felony-misdemeanor line as a major hurdle to cross. We explore here the effects of depth of felony charging options on the felony-misdemeanor dividing line: the deeper the felony options available, the less likely prosecutors are to agree to a misdemeanor outcome.
In the last half of this essay, we shift our focus to the theoretical and normative questions connected to charge movement. Assuming that the structure of the criminal code does affect charge movements, what does this mean for our accounts of criminal prosecutors and criminal codes? Should we favor changes to criminal codes that make charge movement easier?
Any evaluation of legal tools, such as the structure of a legal code, will depend on our expectations about the users of those tools - here, the prosecutors. The desirability of charge movement will differ for those who employ different theories of decision making by prosecutors. In particular, we distinguish here between the "who and what" dimensions in theories of prosecutors' decision-making.
Some accounts of prosecution emphasize the power relationships among the people in the prosecutor's office and the relationships between prosecutors and other actors in criminal justice. These theories ask, "Who decides on criminal prosecutions?" For these "who" theories, charge movement is generally negative because it obscures accountability, making it difficult to appreciate which of the actors is making the truly relevant choices.
Theoretical accounts of the prosecutor's work also build on assumptions about the objectives of individual prosecutors. These accounts try to answer a common question: "What does the prosecutor want to accomplish and what considerations affect how the prosecutor pursues those goals?" For these "what" theories of prosecution, charge movement is neither positive nor negative in itself. If one assumes the prosecutor is likely to maximize public goods, then charge movements can help the prosecutor do more of a good thing. At the other extreme, if prosecutorial discretion is seen as arbitrary, then excessive charge movement may be seen as a source of injustice.
Number of Pages in PDF File: 30
Keywords: Prosecutors, Plea Bargaining, Charge Bargaining, Sentencing
JEL Classification: K14, K42
Date posted: December 2, 2007