Sensational and extraordinary. These two words aptly describe the Jussie Smollett case, from its origins as a dramatic, politically tinged hate crime with a celebrity victim to its metamorphosis into an even more bizarre tale involving staged assaults, false police reports and contract disputes. Yet the latest twist, a 16 count indictment, fits squarely within a much more mundane narrative: the routine overcharging of criminal defendants.
How did two allegedly duplicitous interviews with the police about a single incident manifest in 16 counts of felony disorderly conduct? Through a form of charging wizardry that is all too familiar to those involved in the criminal justice system. By treating each misrepresented fact at each interview as the basis of its own charge, authorities could sustain all 16 counts and turn the potential sentence Smollett is facing from a handful of years to a veritable life sentence.
Of course, the odds that a judge would max out and stack these sentences in order to send Smollett to prison for decades are slim to none. But the open secret about the nature of Smollett’s charges highlights that instead of ensuring justice, these kinds of voluminous indictments are designed to maximize prosecutorial leverage.
Extensive criminal codes and little regulation of charging decisions grant prosecutors an almost unfettered ability to set the terms of debate in criminal cases. As in Smollett’s case, prosecutors can splinter a single set of facts into multiple charges. Likewise, each particular transgression may lend itself to charges of varying severity; a vicious attack like the one Smollett alleged could well be categorized as an assault or even an attempted murder.
Aggressively using either of these strategies allows prosecutors to tilt the case to their advantage. Low-probability, high-pain outcomes give defendants a powerful incentive to accept relatively light yet still life-altering plea deals. Similarly, while a defendant may believe that he could beat a single charge at trial, running the table to overcome a series of them may seem like a long shot. In either instance, the safe and smart move for defendants of all stripes is often to take the plea deal.
Incentivizing more convictions more quickly may seem like a boon to public safety, but that misses a fundamental aspect of the justice system. The presumption of innocence exists for a reason, and not all who find themselves in court are guilty. When unnecessary charges pressure guilty pleas from the guilty and the innocent alike, unjust convictions ruin lives and endanger public safety as culpable parties walk free.
Nor are convictions necessary for those who find themselves ensnared in the system to feel the heavy hand of charging policies. Bail amounts reflect the nature of the charges facing a defendant; increase the number and severity of charges, and bail will respond in kind. A high enough bail is a de facto pretrial detention order, and awaiting trial in jail can itself pressure defendants to plead guilty in order to earn back their freedom.
The fact that these charges are legally supportable does little to address the underlying issue, which is one of fairness. We empower our prosecutors with an incredible amount of discretion. Charging a person with additional crimes simply because it is legally possible is a failure to appropriately exercise that discretion. Justice must be impartial, but we should expect more from our prosecutors than such a cold and mechanical distribution of it.
Thankfully, while overcharging may be commonplace, it is far from universal. In fact, a handful of leading prosecutors are taking public stands against it. In Philadelphia, district attorney Larry Krasner has declared that “the era of trying to get away with the highest charge regardless of the facts is over,” and his early actions suggest that this is more than just rhetoric for him. Wesley Bell has staked out a similar position for the St. Louis County prosecuting attorney’s office.
If enough prosecutors follow this lead and adopt more parsimonious charging policies, overcharging could be relegated to as much of an outlier as the rest of the Smollett case. This might mean a little less coercion and a bit more justice. Now that would be sensational and extraordinary.