Yet Another Case of Overzealous Prosecution

Radley Balko has a great roundup of bloggers’ reactions to the Zimmerman indictment. The common thrust in most of these responses is that the prosecution has gone too far, based on the available evidence it promises to show, to pursue second-degree murder charges.

No doubt the media frenzy brought about this prosecution in the first place. One thing to keep in mind through all this is that a prosecutor’s tendency to over-charge a defendant does not only occur in such high-profile cases. To the contrary, it is completely common. While here the purpose might be to garner the support of the public in a well-known case, usually the purpose is quite different: to ensure the conviction of the defendant.

In 95% of felony convictions in the United States, the result comes from a plea bargain. There is no trial. In order to secure guilty verdicts, the prosecution almost always over-charges, layering one charge upon another to make the risk of conviction at trial far too high for a defendant to accept. The prosecutor, the most powerful official in the law enforcement system, will typically threaten a defendant with 30 years of prison, for example, if he dares to take his case to the courtroom. This guarantees a plea that results in a few years of imprisonment.

This is a major source of prison overcrowding. Only a tiny minority of inmates ever had their day in court, because instead of being charged with what the prosecution thinks is fair, throwing the fate of the defendant to the chance he’ll be acquitted, the prosecutor often does a simple calculus: If he wants the suspect in prison for two years, he’ll find a way to charge him with enough accusations so that a conviction will lead to fifteen. And so he gets the two.

There is virtually no justice in the American criminal justice system. If there is a silver lining in the horrific Zimmerman-Martin affair, it will be to give one more famous example of this important truth.

Anthony Gregory is a former Research Fellow at the Independent Institute and author of the Independent books American Surveillance and The Power of Habeas Corpus in America.
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