Should Prosecutors Pay An Overcharge Trial Tax?
November 4, 2016 (Fault Lines) — If there are any two words to bring joy and gladness to a law and order Republican’s heart, it’s “tort reform.” Tort reform, the theory goes, protects people and businesses from frivolous litigation that unfairly eats up resources. It brings down medical costs by letting doctors be doctors. It drives those damn lawyers out of business. It’s the closest real-world equivalent to unicorn tears, in other words.
One common innovation in states that have adopted tort reform is a “settlement tax.” In Georgia, for instance, if a defendant offers a plaintiff a reasonable amount of money before trial, and then at trial the plaintiff gets considerably less, the plaintiff must pay attorney’s fees. He got greedy, after all.
Similarly, a defendant who turns down a reasonable settlement offer from the plaintiff, only to be socked with a whopper of a verdict, then has to pay attorney’s fees on top. The system has a grand way of deterring civil cases from going to trial.
We’re all familiar with a similar system at play in criminal defense, of course. After a defendant is convicted at trial, it’s not uncommon for a judge to ask how much time was offered beforehand. If it was a reasonable offer, that’s all the more reason to stick the defendant with a harsh sentence for unreasonably sticking to his guns. Out in the world of us deplorable aiders and abettors, we call that a “trial tax.”
But there is no meaningful equivalent for prosecutors. Every incentive in our system, including the written guidelines for the Department of Justice, encourages prosecutors to charge the most serious crime they can imagine on the facts. That provides more leeway in bargaining and increases the odds that even an innocent defendant will be convicted of something.
After all, what’s the downside risk? The worst thing that could happen is a directed verdict, or an acquittal and a juror who complains about taxpayer dollars wasted. Generally speaking, that’s not a huge deterrent. And the flip-side is all that sweet media coverage when you win at trial and get a 1,503 year sentence.
Isn’t it time that we started adopting some of the better ideas of the civil world into our criminal justice system? After all, settlement, i.e. plea bargaining, has become the central fixed star of our courts. Why not also create a reason for prosecutors not to object to reasonable settlements?
Take your classic voluntary manslaughter case, for instance. A man stumbles home to find his wife in bed with the handsomer brother he always envied. Violence ensues, and somebody ends up dead. Now your average prosecutor will take that textbook voluntary manslaughter case and charge murder, knowing that he will likely be able to get a favorable plea before trial, and that even if you’re convicted on only the lesser count, you’re likely to get the maximum possible sentence as penance for asserting your rights.
So why not flip that equation? In a system rife with mandatory minimums and easily achievable maximums, why not create a rule that says that if defendants are acquitted of a greater charge, the minimum and maximum for the lesser charge is cut in half? That would create meaningful incentives for a prosecutor to reduce his case down to the most easily provable charge.
More to the point, it might actually let some good come to a defendant when a jury, paralyzed over the issue of reasonable doubt, decides to split the baby and pick a middle range. Suddenly, a defendant who might have faced a stiff mandatory minimum despite the jury’s uncertainty might be able to get out into the world at some point.
As it stands right now, there is a growing consensus that the problem of over-incarceration in this country has not been solely the responsibility of broken windows policing and eagerly tough on crime legislatures. Rather, it has come from prosecutors taking what once would have been simple misdemeanor cases and charging them to the hilt.
Tort reform became a cause celebre among the conservative crowd because the perception existed that dirty, ambulance-chasing lawyers had nothing to lose by pursuing a case. At worst, they’d get the nuisance value out of it, and at best, a sizeable jury verdict. Regardless of the merits of this position, it has a certain logic that has resonated with state legislatures.
Prosecutors enjoy similar costless benefits. Losing a case costs nothing. Losing a top charge costs nothing. Even the most frivolous criminal charge carries, at worst, the prospect of being mildly embarrassed on social media. If we truly believe we can deter bad behavior by creating costs for losing parties, there’s no good reason to keep the government out of the fun.