Dismissing Charges and Rejecting Cases
Crime victims, police officers, and prosecutors are all supposed to be on the same side within the adversary system. Yet their alliance—based in the- ory on a common commitment to convict people guilty of crimes—often unravels. Victims may feel rebuffed and abandoned when prosecutors dismiss or reduce charges and counts against suspects. A decision not to go forward means no further official action will be taken, and injured parties will not achieve the goals they sought when they reported the crime, whether they were looking for maxi- mum punishment as revenge, compulsory treat- ment of the offender, or court-ordered restitution.
To prosecutors, these decisions, even if they infuriate victims, are unavoidable. It is impossible for prosecutors to fulfill their legal mandate to enforce every law and to seek the conviction of all lawbreakers. When evaluating the cases brought before them by police and deciding whether to go
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forward, ADAs must take into account many other considerations besides the victims’ wishes: How are cases of this kind usually handled in this jurisdic- tion? What are the odds of a conviction rather than an acquittal? Are there serious doubts about the guilt of the accused? How credible and how cooperative are the victim and other witnesses? Does the complainant have any improper motives for pressing charges? Was the evidence obtained according to constitutional guidelines, or will it be tossed out of court under the exclusionary rule? Is the whole undertaking worth the state’s limited resources? How much will it cost in time and money to resolve the matter? Would indictment, prosecution, and conviction of the defendant serve as a general deterrent to others who are con- templating committing the same type of offense (an application of the theory of general deterrence)? Would punishment discourage the offender from repeating this illegal act (an application of the the- ory of specific deterrence)? Would pressing charges and seeking conviction enhance the community’s sense of security and boost confidence in the crimi- nal justice system? Could the accused cooperate with the authorities as a police informant or as a key witness for the prosecution in other cases in return for leniency? Would pressing or dropping charges set off protests from powerful interest groups in the community? If this office declines to prosecute, would the case be pursued by another branch of government or in a different jurisdiction? Are appropriate pretrial diversion programs avail- able that provide treatment to wrongdoers as an alternative to adjudication? And last but certainly not least, would a victory in this case substantially advance the careers of the ADA handling the case and of the prosecutor heading up the office? (see the National Advisory Commission, 1973; Sheley, 1979; and Boland and Sones, 1986).
When all these factors are taken into account, it is clear that the victim is only one of several key players who influence the decisions of prosecutors. Police officials, other colleagues in the prosecutor’s office, defense attorneys, judges, community lea- ders, journalists covering the story, and vocal inter- est groups all affect prosecutorial decision making.
Cases that have been solved by arrests might not be pursued for a number of reasons. Prosecutors might screen them out because of perceived weak- nesses that undercut the chances of conviction. Judges might dismiss charges on their own initiative if they feel that the evidence is weak. In general, jurisdictions in which prosecutors weed out many cases before going to court have low case-dismissal rates at later stages of judicial proceedings. Where prosecutors toss out few cases, judges throw out many more. Periodic nationwide surveys of overall felony case processing revealed that nearly half of all cases that were solved by arrest were not carried forward (either rejected at screening by prosecutors, dismissed in court by judges, or diverted out of the system) (Boland and Sones, 1986; and Boland, Mahanna, and Sones, 1992). Clearly, the outcomes of these decisions could cause a great many victims to become dissatisfied with the adjudication process.
One measure that would substantially empower injured parties would be to permit private prosecution—allowing them to hire their own lawyers to act as prosecutors—to initiate charges, handle plea negotiations, and present cases at trials. This option is allowed in other countries and was a standard procedure in colonial America. By the end of the 1990s, only a few jurisdictions still authorized a victim’s attorney to directly ask a judge or grand jury to initiate proceedings against a defendant (see Beloof, 1999). However, if this reform were implemented, only the prosperous would be able to afford such personalized justice.
Negotiating Pleas
The vast majority of cases that are carried forward (not diverted to treatment programs, screened out by prosecutors, or dismissed by judges) are resolved by out-of-court settlements known as negotiated pleas. Plea negotiation is the process in which the ADA and the defense counsel meet in private to hammer out a compromise and thereby avoid holding a public trial. The typical outcome of the “bargaining” (as most observers and participants derisively refer to the offers and counteroffers) is that the defendant agrees to waive his or her
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constitutional rights to a trial in front of a jury of his or her peers and instead confesses in return for some consideration from the government. Many types of concessions from the prosecution are possible, such as dropping certain charges (often the more serious ones carrying the most severe penalties) or the dismissal of particular counts (accusations of harm against specific victims). Often, the consider- ation is a promise or a recommendation for a lesser punishment: a suspended sentence, probation, a fine, or incarceration for an agreed-upon period of time that is less than the maximum permitted by the law.
Over 95 percent of all felony as well as just about all misdemeanor convictions were secured by the accused admitting guilt rather than by a jury rendering a guilty verdict or by a judge’s deci- sion (bench trial), according to a database of cases adjudicated in the 75 busiest urban U.S. counties in 2009 (Reaves, 2013).
Plea negotiation, even though it has been widely condemned for decades, appears to be the only practical way of handling a huge volume of cases. If all the defendants detained in a jail demanded their constitutional right to be judged by a jury of their peers after a trial, the local courts would be paralyzed by gridlock.
Because doing away with deals and induce- ments is unrealistic, some victims want to play active roles in the plea negotiations that resolve their cases. They justify their quest for empower- ment by emphasizing that they were the ones directly involved and personally harmed, and thus it is their case. Unless they are allowed to play a role in this process, they will be effectively shut out of any meaningful participation in the resolution of their cases.
But this demand and formulation of the issue has evoked considerable resistance from prosecu- tors. They feel threatened by the inclusion of vic- tims (whom they supposedly represent, in addition to the state) at such meetings. They object because victims might try to use the administrative machin- ery as an instrument of revenge and might put for- ward unreasonable demands for the imposition of maximum penalties. Deals would fall through, and
risky and costly trials would result (McDonald, 1976; and Rothfeld, 2008).
In general, victims still do not have a right to participate in or even be consulted during the pro- cess of plea negotiation. Few jurisdictions grant vic- tims a clearly defined role, and most state laws still do not provide them with any formal mechanisms to challenge the decisions of the prosecuting attor- neys who act in their names as well as on behalf of the people. No state legislation empowers complai- nants to dictate the terms or to nullify a proposed deal. The terms to confer or to consult are interpreted as merely to notify, inform, or advise. Victims have a right only to make their opinions known and to offer comments, and prosecutors merely have an obligation to consider their views and bring them to the attention of the judge. The terms of the settlement and the sentencing recommendations ultimately are still matters of prosecutorial profes- sional discretion. Most state laws flatly declare that there are no consequences for noncompliance with these rights, and that failure to observe the pledges about opportunities for input shall not be grounds for changing the sentence. Hence, victims only have a voice, not a veto, and even then still are frequently completely excluded from the negotia- tion process (NCVC, 2002d).
Many victims are convinced that criminals gain an advantage when they accept plea bargains offered by the prosecution. Actually, the expression plea bargain gives the erroneous impression that defendants who cop a plea invariably get a break or good deal that permits them to escape the more severe punishment they deserve. Actually, police officials and prosecutors routinely engage in bedsheeting and overcharging so that they will have more bargaining chips in anticipation of the negotiations that will follow. Bedsheeting is the practice of charging a defendant with every appli- cable crime committed during a single incident. For example, an armed intruder captured while burglar- izing an occupied home could face charges of crim- inal trespass, breaking and entering, burglary, attempted grand larceny, and carrying a concealed weapon, in addition to the most serious charge of all, robbery. Overcharging means filing a criminal
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indictment for an offense that is more serious than the available evidence might support (for example, charging someone with attempted murder after a fistfight). Some of these charges could not be proven in court, but defendants and their lawyers might be too cautious to gamble and call a prose- cutor’s bluff. For these reasons and others, most accused individuals who plead guilty in return for concessions receive the penalties that they probably would have received if convicted after a trial (Rhodes, 1978; Beall, 1980; and Katz, 1980).
Resolving cases by negotiating pleas rather than by holding full-scale trials certainly saves tax- payers the expenses incurred from building more courthouses, hiring more judges, bailiffs (court officers), and defense attorneys (for indigents). But out-of-court settlements attained through nego- tiations might be in the best interests of certain victims. Plea negotiation spares victims the ordeal of testifying in court and undergoing hostile ques- tioning during cross-examination by defense attorneys. For some victims, testifying in painful detail means reliving the horror of the crime, as in this trial:
A tearful victim tells a jury how she had fallen asleep cuddling her toddler while her husband was working late. She awoke when she heard a prowler enter through a kitchen window, but remained still. Unfortunately he spotted her, pulled out a knife, and put the blade to her daughter’s throat. Faced with a nightmare choice, she quietly submitted and was raped. “It was disgusting,” she testifies. On cross- examination, she admits that she can’t identify the accused because the intruder covered her head with a sheet (but his DNA was lifted from the bedding). (Ginsberg, 2005)
Concerns about emotional distress suffered by a victim on the stand are voiced most often in cases of forcible rape and child molestation. Other types of complainants also may be particularly reluctant to undergo cross-examination if the facts of the case portray them in a negative light or reveal aspects of their private lives that they do not want exposed to the world via media coverage (especially in jurisdic- tions where trials can be televised).