24 Pages Posted: 3 Mar 2013 Last revised: 22 May 2014

See all articles by Kyle Graham

Kyle Graham

Santa Clara University School of Law

Date Written: March 1, 2013


The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry. These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior. United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining.

Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices. The various meanings given to “overcharging,” when the term is defined at all, have made it difficult to ascertain what this practice entails, why it is improper, and who the worst offenders are. This essay aims to improve the ongoing conversation about overcharging in two ways: first, by disentangling and fleshing out the core meanings of this term; and second, by proposing and then applying some metrics to identify prosecuting authorities that chronically overcharge.

Keywords: overcharging, prosecutors, prosecutorial misconduct, criminal law, criminal procedure

Suggested Citation

Graham, Kyle, Overcharging (March 1, 2013). Ohio State Journal of Criminal Law, Vol. 11, No. 1, 2014; Santa Clara Univ. Legal Studies Research Paper No. 7-13. Available at SSRN: https://ssrn.com/abstract=2227193 or http://dx.doi.org/10.2139/ssrn.2227193

Kyle Graham (Contact Author)

Santa Clara University School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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