Preventing overcharging by prosecutors
In criminal cases in the United States prosecutors often add a lot of charges for a defendant to have ammunition for coercing the defendant into a plea deal. This is toxic because the defendant doesn’t know which of those charges are likely to hold up in court if the case would be decided by a jury. Given that there’s little cost to the prosecutor for adding additional charges, defendants are often overcharged.
I propose that whenever a prosecutor files a charge for a defendant, the prosecutor should state the likelihood that in the absence of a deal the court will find the defendant guilty of the charge. The ability of the prosecutor to accurately access the likelihood can be measured via the Briers score or a Log score.
The current score should be publicly accessible on the website of the court. This allows the defendant to know whether they can trust the likelihood values the prosecutor gives. The score should also be printed on ballots when the prosecutor seeks reelection to create much higher incentives for the prosecutor to give the correct likelihood then convicting a lot of people.
After the prosecutor provides the likelihood for the charges it’s much easier for a defendant to make a good decision about whether taken a given plea deal is in their interest. Prosecutors with a good Briers score will be able to make more plea deals to reduce their overall workload because it’s easier for the defendant to know that a deal is in their interest.
While this reform wouldn’t fix all problems with plea deals, as some plea deals are due to the defendant being given charges that would actually hold up in court given the existing criminal code, the reform will provide defendants with fairer plea deals. Defendants getting fair plea deals is good for the system given that it keeps overall legal costs down.
I would expect that many juries will automatically throw out a 10% or 20% charges because there will be people on the jury who would argue that the prosecutor thinking that there’s only a 20% chance that a charge holds means that there’s reasonable doubt against the charge.
This reform is both in the interests of citizens who care about law and order and citizens who care about reducing sentencing overall as everybody should be interested in prosecutors providing fair plea deals.