Prosecutors, Charge Stacking, and Plea Deals

We’ve posted several times on the blog about how prosecutors will “stack charges” against a defendant, thus building a very long potential prison sentence if convicted, and then approach the defendant with a “plea deal” that would result in a guaranteed, substantially reduced charge and sentence if the defendant agrees to plead guilty to the reduced offense. If the defendant takes the deal, the prosecutor doesn’t have to take the case to trial, and possibly not even to a grand jury, both of which are a lot of work and require a lot of time on the part of the prosecutor. This has become absolutely standard practice. The prosecutor will “stack” charges to build such a scary potential sentence, that even actually innocent people will be intimidated into pleading guilty, rather than face what’s called the “trial penalty ” – that very scary long sentence if they should somehow be convicted at trial. Not surprisingly, the nature of the deal offered by the prosecutor will be driven by how strong a case he/she thinks they would have in court – the weaker the case, the better the deal.

Let me also add that the prosecutor has no problem assembling a very long list of charges against you. The penal code has become so vast, and there are so many laws, that there’s a law against practically everything. I suggest that most people are not even aware they’re breaking a law when they do it, because they don’t know the law exists. I swear; I think they could charge you with something for walking down the sidewalk whistling a tune while wearing a blue shirt.

To really understand what happens here, I thought it would be enlightening to provide an example case – albeit hypothetical and totally “made up.” Here’s the scenario: You are out mowing your lawn one day, and find a nest of six baby rabbits at the base of the foundation of your house. Now, the rabbits have been eating and destroying your landscape plants for years, so your first reaction is, “Get the hose and drown them.” But then you think, “No, I’ll do the humane thing; put them in a box, and release them out in the ‘country’.” So you scoop the rabbits into a cardboard box, put it in your car, and drive out to the country.
Now, here’s what happens. You stop by the side of a country road, release the rabbits out into the tall grass, get back in your car, and drive away. A sheriff’s deputy on patrol noticed you dumping something by the side of the road, and he pulls you over. The officer comes up to your car, and asks, “Sir, may I ask what you dumped by the side of the road back there?” You answer, “It was just some rabbits from my yard.” The officer says, “I see. How many?” You say, “Six.” And at this point, the officer says, “Sir, get out of the car. You’re under arrest for interfering with wildlife.”
Now that you’ve been arrested and initially charged, the prosecutor is going to come to you (and your attorney) with a plea deal. This can be even before an indictment, because if he/she can get you to plead guilty now, then he/she doesn’t have to spend time and effort taking the case to a grand jury, much less to trial. In this case (your case) the prosecutor comes to you (your attorney) and says, “This is what I’m charging you with.” The prosecutor then lists the charges and the prison sentences that accompany each:
Interfering with wild life. One count. Six months each count.
Removing wildlife from its natural habitat. Six counts.  One year each count.
Placing wildlife in a non-native habitat. Six counts. One year each count.
Use of a motor vehicle for the purpose of interfering with wildlife. One count. One year each count.
Illegal dumping. One count. Three months each count.
Illegally parking on a county road. One count. Three months each count.
[Note: If someone else had helped you do this, there could also be conspiracy charges added.]
Then the prosecutor says: “If you will plead guilty to one count of interfering with wildlife, we’ll see that you get 30 days in jail, with one year probation upon release, and a $500 fine.” When you do the math, you quickly realize you’re facing a possible 14 years in prison versus 30 days and probation. You’re thinking, “This can’t be happening. I don’t think I did anything wrong.” But what would you do? Go to trial and face 14 years in prison? This is the dilemma that many defendants face on a regular basis, and is the primary reason why only 6% of criminal cases ever go to trial.  [And for federal cases, it’s only about 3%.]
Granted, this example was completely contrived, and it’s not possible to concoct an example that’s exactly analogous to every individual collection of circumstances, but that’s essentially how it works.

23 responses to “Prosecutors, Charge Stacking, and Plea Deals

  1. Phil, the stacking begins at arrest actually.

    • Charges were added “after” arrest that did not appear on the police report or at the IA hearing in the Courtney Bisbee case, where the prosecutor appeared and Courtney had no defense attorney present.

      Who controls the Grand Jury where the prosecutor is in control and defendant and defense attorney are excluded? Who prepares the “indictment”, where the inflated and trumped up charges are thrown in? Stack the charges so they can label her “high-profile” for media coverage, financial and career gain?

  2. “Plea bargaining by all civil officers of the U.S. is in violation of Article II, Sec. 4 of the Constitution. A “plea” is nothing but a bribe.” (concerned citizen)

  3. William Mosley

    I think this happened to me. I did not plead guilty. But was found guilty because of the nature of the charges not because of the evidence. Because it was contradictory. I am innocent and got 20 years. Can’t get any help.

    • Damn… I feel for ya, man. The system is so fucked up.
      Then again, I thought EVERYONE was innocent until here recently, when some friends of mine began going in and out of the penitentiary, bragging what their “real” charges could’ve been…
      My friends sure do make me wonder.

  4. State Bar of Arizona :: Ethics Opinion June 2015
    New Ethics Opinion: 15-01: Plea Agreements; Waiver; Ineffective Assistance; Conflict of Interest; Criminal Representation

    A newly released Ethics Opinion has been posted to the State Bar of Arizona Ethics Opinions web page. Click to read the entire opinion.

    15-01: Plea Agreements; Waiver; Ineffective Assistance; Conflict of Interest; Criminal Representation

    For ethics questions, call the State Bar ethics hotline at 602.340.7284.

    “The conflict-of-interest rules prohibit a defense attorney from advising a criminal defendant to waive the defendant’s right to raise that attorney’s ineffective assistance of counsel. The ethical rules also prohibit a prosecutor from insisting that a defendant waive the right to raise ineffective assistance of counsel and prosecutorial misconduct claims. Opinion 95-08 is accordingly withdrawn.


    The Arizona Rules of Professional Conduct apply not only to state prosecutors but also to federal prosecutors practicing in Arizona.[1] As a condition of their plea offers, certain prosecutors have required defendants to waive all post-conviction judicial review. The exact language of these waivers has varied over the years and will undoubtedly continue to vary in the future. As a common example, a typical federal waiver required that the defendant give up any right to raise any claim on appeal or in a habeas corpus petition.[2] The defendant also generally has to acknowledge in the signed plea agreement that the defendant is “satisfied” that defense counsel has acted in a “competent manner” and has “carefully reviewed every part of” the plea agreement with the defendant. The defense attorney generally must then approve and sign the agreement, representing (1) that the attorney has discussed with the defendant the plea agreement, the defendant’s constitutional and other rights, and the consequences of the guilty plea and (2) that the attorney agrees that the terms of the agreement “are in the best interests of my client.”[3]

    Because such waivers do not except claims arising from the defense attorney’s own ineffective assistance of counsel or the prosecutor’s own misconduct, the waivers thus attempt to eliminate defendants’ rights to raise ineffective assistance of counsel and prosecutorial misconduct claims (among other claims) on appeal or in post-conviction relief proceedings. Although the Arizona state courts generally do not enforce these broad waivers,[4] the United States District Court for the District of Arizona and United States Court of Appeals for the Ninth Circuit generally do enforce them.[5] While federal prosecutors have recently revised their internal policy and are not currently requiring defendants to waive their right to raise ineffective assistance of counsel claims,[6] the policy does not address the ethical implications of the waivers described above and does not address waivers of prosecutorial misconduct claims.[7] ” ….

  5. I am usually the one who gives prosecutors and police a lot of grief but the issue of rial penalty is a two sided coin (the prosecutors have seen fit to abuse to their own content).

    Because of the massive amount of arrests and cases the system (more judges and prosecutors) depend upon the plea bargains to keep everyone in line. This follows the same logic of administration needed to run a prison camp. Those who dare to speak up are brutally punished to make sure everyone else stands in line. With the prosecutors, it isn’t personal or justice but rather just management, if you let one defendant stand up to you and challenge you and don’t respond with brutality, they all will stand up to you. Prosecutors use this as a threat to deter trials because if they did not no one would ever cooperate or plead. If there was no trial penalty every defendant would assert their right to trial (because they have nothing to lose), prosecutors would have more work fighting every defendant from case to case, the cost of the system would skyrocket, and the system would be administratively clogged (like shoving an elephant through a funnel).

    So what then….? Which is worse the bully being in control or no one being in control?

    I am not saying that I agree with it but merely that I understand why it happens in the cause and effect of sequence and management.

    This is a good dialogue to have.

  6. “If there was no trial penalty every defendant would assert their right to trial (because they have nothing to lose), ” …

    And no one would dare go to trial, because of “trial penalty”, unless they knew they were innocent, which should bring some credibility to “presumption of innocence” and “due process”.

    And, then to continue the “years-long” costly battle in the Appeals courts (“rubber-stamping” “denied” with no explanation after years of languishing (SOP?)), for 11 years at enormous cost (all private lawyers, no public defenders here) – selling our homes, etc. to mount a legal defense (a transfer of a lifetime’s working assets and retirement, to the legal system). No one is discussing this. Instead, this makes a mockery of the “nonexistent” appeals system, which needs further discussion. Prosecutors moved up to Appeals judges “protecting” their earlier convictions (people say)?

  7. I said I understand why it happens but not that I agree with it.

    If the prison camp guards let one inmate stand up to them and do not respond with overwhelming brutal force, then all prisoners will stand up to them.

    Its a very impersonal management.

    I wish there was a better system…maybe police could just arrest less people?

    • Lee, It starts with the police report. How well are the police trained to understand that when they file that report, they just destroyed a life and a family – who are all now plunged into the broken criminal justice system.

      Study your county jails, where over 12,000,000 people are thrown into each year across America. And who controls the county jails? An “elected” politician? God forbid if they are bastions of zero-tolerance policies, racism and bigotry. Start here with serious reform. Los Angeles county jail would be a good place to start for a case study. Maybe, Maricopa County jail, AZ — both currently in the news??

  8. Pingback: Center for a Stateless Society » The Weekly Abolitionist: Plea Bargains vs. High School Civics Fantasies – An Outsider's Sojourn II

  9. I was arrested. I am 56 years of age. I was a single Mother a professional in the securities industry. I was raised in abuse and i am now potentially going to die in some prison of abuse. I am on social security disability on a mental disability stemming from childhood trauma that still haunts me to dysfunction today. Police abusing powers. Lying manipulating facts permitting CI’s and themselves to break any and all laws they deem necessary to feed the discretionary privileges of the Prosecutorial machine so they can enjoy their Christ_less (mas) bonus in the ever growing machine of the powers that be seeking control and containment to continue to usurp the inheren rights of man in their own it the growing of an economy for the politically power hungry governments that spawn the abuses or to further their own ends. I cant even tell you about the hell I gave do even endure from the failings of my own attorney a former proscecutor of you guessed it 13 years in the name of God nailing the coffin shut! Well, with the stacking of charges and the lies probably 5 years in prison for a pipe planted in my front seat, being sexually groped by a CI and valium for which i have a prescription (over 20 years) anothrr charge for 3 xanax. All in the interest of a Controlled buy or sale arrest where neither took place. Nor were drugs that go eith this pipe found. I ran out of gas. Is soon to be im homeless. Then prison. Then??? I refuse to admit guilt when i am not guilty. I rather blow my head off than permit somebody else to take another thing from me because they are in authority to do it. All I can say is homelessness or prison. I get to eat and i’ll have a roof over my head. The joy of choice which one moves you to tears?

  10. I had called police my husband had a alcohol relapse and I was very angry I was hitting him in face with a envelope he stood up grabbed my wrist and we both went down, he got 2 simple assults and harrassment he is in jail now, I testified as to what I just stated, but DA and police keep calling me trying to lead me to say that I am scared of him, he does have a record, and is on probation, but they keep trying to tell me they

  11. Wow. That is exactly what has happened to me. However because i did not take the deal this prosecutor went to the grand jury and got 6 more counts including burglary on an assault case. The judge said he would have to review the new charges cause burglary doesnt make sense. Not to mention repeated nonsense. I may go to trial and face what was ZERO jail time and a felony conviction to now a trumped up 15 years in prison.

  12. Never speak with the police. If the police want to question you, only tell them your name, address and date of birth. In response to any other questions the police might ask you, politely tell the officer that you are going to remain silent and that you would like to have a lawyer present while you are being questioned.

  13. Pingback: Over-Incarceration, Charge-Stacking, and Mens Rea - PEA Soup

  14. Apparently what they don’t tell you is when you take the plea you also forfeit the right to sue for all wrongdoing. My fiance was accused of stealing money from a Huddle House in GA and lost his job, the case was being investigated, nobody told him he couldn’t leave GA. I took him to NC, where we were from so he could get his job back at Waffle House and start building up some money before my children finished the school year. I returned to GAandthe next day two detectives came to my house and asked for Ray, never asked where he was and told me he didn’t have a warrant yet, the chief of police called me and asked me to have Ray call him so I did. They never came back to my house and never called me again, but the chief of police did follow me when i was driving places, but never attempted to stop me. Two days later I got stuck in a ditch and called the police to help me get out, two days after that my landlord started clearing my yard and throwing my children’s toys away, took my dog, and i was told he shot him. After a long week I made the decision to leave GA, even though I would have to pull my children out in the middle of a school year. One month later my sisters tried to take custody of my children because they don’t like my fiance, 6 days later I got my kids back after going to court and the courthouse getting information that I in fact did not have a warrant for anything and was not fleeing from the law, however a warrant was taken out on Ray, 22 min after we left the courthouse they called DSS on me and throughout that month they called the police department in GA seven times, resulting in the chief of police taking out a warrant on me for “aiding the escape of a felon in custody “, because as stated in my warrant they had a recording of me admitting to taking ray to NC. However, he lied staying that in the week that I was in GA I alluded and hid from the police and wouldn’t answer their questions, and then I fled the state after they took out a warrant on me. The warrant was back dated to the week I was in GA. I had no idea the warrant was ever even taken out on me until 1.5 years later, when i was looking at land to buy and flip, got lost and stopped for suspicious behavior and the warrant was reported. My 11 year old was at sixth grade orientation, my 15 year old was asleep at home and i had my 7 year old and 3 year old with me. DSS had to hold onto the 7&3 year old and Rays sister picked up my 11 year olds from the middle school and then picked up the younger ones then the teenager. It was horrible for my 3&7 year old.

    I was arrested with Ray in NC and brought back to GA, the NC police did because I didn’t have any kind of criminal record I would get bond and be back home within a week, if only that was the case. Two days later I was brought to GA, two days after that was my bond hearing, which was a joke. The magistrate didn’t even look at my record and at that time i didn’t know my warrant was back dated, but “the police said I was a flight risk so I was a flight risk” according to the magistrate. He informed me that I would have the chance to get bond at the superior Corry bond hearing.

    Little did I know that wouldn’t take place for another nearly two months. In the meantime my 15 year old couldn’t enroll in school because I home schooled her last year, so she’s begging me nearly every day to get home asap. My ex husband paid a later to draw up papers so i could sign them and get them notarized so he could get her in school, nearly three weeks later they were still not delivered to me. My three year old was driving my sister in law insane, and her blood pressure was going sky high, not to mention, he cried that he just wanted to go with me every time i talked to him.

    Finally almost two months later i had my superior court bond hearing, another joke if you ask me, everyone there for a bind hearing was offered a plea and if they didn’t take it they went back to jail.

    I had already been informed by my lawyer that they charged me with the wrong thing and really there was nothing they could charge me with because i didn’t break any laws, so he was trying to get charges dismissed. Well, I was offered a plea, but i would get to go home to my kids, so i took it. The felony was dropped to a misdemeanor obstruction of justice, 12 month sentence, two months served, suspended pending my agreement to banishment from the seven counties in the judicial circuit for twelve months. They could have banished forever because I never ever ever want to go back there! But i took it. I was unlawfully arrested and unlawfully imprisoned due to police misconduct but because i took a plea i can’t do anything about it. I just got out of jail one week ago today, and I’m pretty upset with myself for not knowing that i couldn’t do anything about the way i have been treated, lied about, not to mention the horrible ramifications my children have to face. In this past week since I’ve been home my now 4 year old, i missed his birthday while i was in jail, every time he’s heard sirens asks me if the police are going to take him, me or his sister. He asks me if they still have his daddy, which they do, that’s an entirely different story, but he didn’t steal any money, he was the manager, his assistant manager stole some money and the owners added a loan they gave him into the total to make it a felony theft charge. He is still in jail and he just wants to come home. He is planning on taking their plea on Nov 8 even knowing it will negate everything and he will be on probation for way too long, he just wants to come home. I wish I could do something before he went to that “bond hearing” so they call it, but it’s a small town, the Huddle House owners are in with the police and money buys everything there, false testimony, lies, false allegations, false arrest, etc etc, as long as you have money there you can do whatever you want to the low man on the totem pole. Apparently if you take a plea to get home and take care of your kids there is no going back. But my kids needed me, so knowing what I do now if I was in the same position I would still come home to my children, because they are more important than anything else and they need to know that i will always fight to be with them as long as i live. I just found it the hard way how horrible the US justice system is, even when you do absolutely nothing illegal.

  15. Pingback: BACK FROM THE BIG HOUSE | Red Herring Alert

  16. So what can you do about it after going to prison? Can You suit the public defender, probation department, police department. Starting with friends and family of officers and state officials for their ‘doing favors’ to put an 18 yo in prison on false charges that a public defender told him plead guilty or go to prison for minimum 4 years, only to find out later the accusations were false?

  17. The prosecution lied about not pursuing jail time and probation when I took the lesser charge. The complainant didn’t even show up because they were not interested in pressing the issue. The prosecution manipulated the words of the complainant, and lied under oath.

  18. How does America’s indefinite ‘right to know’, and permanent collateral consequences for old spent misdemeanors, square with the 8th. Amendment? Interesting question.
    “Cruel and unusual punishment” is a phrase describing punishment that is considered unacceptable due to the suffering, pain, or humiliation it inflicts on the person subjected to it.
    There are generally tests that can serve as a guide to what cruel and unusual punishment is according to various legal textbooks in accordance with the law. These are:
    1)** the frequency at which the punishment occurs in society**
    2) overall acceptance in society (?)
    3)** severity (the punishment fits the crime)**
    4) if the punishment is arbitrary (?)

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