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Charge Stacking: Gambling with People's Lives

There is a relatively new term in the legal system that is heard all too rarely, and usually understood when it's too late. The sheer power it carries can be catastrophic, and thus should be a prime fear of all defendants who enter to the mercy of the courts. The phrase is "charge stacking".  


These seemingly simple words, which have ravaged the lives of so many, arose out of a natural evolutionary development in the courtrooms. But it is this phrase, or this practice of stacking that, for example, enabled a 20 year old first time offender to receive 1,941 months (162 years) in prison without the possibility of parole, reported by Reuters – Tue, Jul 3, 2012.


The practice of charge stacking is a simple and terribly effective method for prosecutors looking to win cases. The technique entails finding as many possible criminal counts to “stack” against the defendant in order to strengthen the core case of the prosecution. This strategy is made wide open to prosecutors, because the main deterrent against stacking charges is the law of double jeopardy. In Blockburger v. United States, the Supreme Court said the government may separately try and punish the defendant for two crimes if each crime contains an element that the other does not. Therefore double jeopardy is so weak a deterrent that a person can be convicted of ten counts of perjury when they were perjuring about one thing on ten different days. Turning one crime into many is easily done, and with this in mind a prosecutor can easily circumvent laws of double jeopardy in order to lump, for example, drug offenses with conspiracy (some laws like this are broad and easily manipulated to fit many cases), gun use, money laundering, and a laundry list of other charges together. At first glance this may not seem so bad. After all, the criminal who gets taken down for serious drug crimes is often guilty of these other charges and probably deserves punishment for them. When charge stacking is without limit, however, lesser criminals may suffer under the weight of this exorbitant practice.


In the case of Quartavious Davis (the 20 year old mentioned above) each of the numerous counts of indictment against him were counted as separate crimes. This made Davis, who had never before been charged with a crime, into a multiple offender in a single court case. Davis is now subject to sentences for each stacked charge and to mandatory sentencing guidelines.  Mandatory sentencing is a factor in Common Law whereby a court must impose a minimum amount of prison time on a defendant as predicated by precedent. Mandatory sentencing also revokes a judge’s discretionary powers, so he or she can’t reduce the sentence to match the severity of the crime or criminal.     


Since prosecutors are looking to win cases, why wouldn’t they stack charges? There was a case about a goat farmer in California named Khalid Berny who was charged with 170 counts of misdemeanor. What was Mr. Berny's heinous crime? The accidental wandering of his goats onto his neighbors property. Berny was charged on three separate occasions for every single roving goat bringing the separate charge total to 170. The punishment for this crime was a fine of $102 per goat, or $17,340, and 60 years in prison. It is also relevant to note that Mr. Berny was never warned by animal control and was hospitalized during the last goat escape incident, therefore incapable of being present on his farm. But stacking isn’t bound by common sense.


Certainly William J Stuntz, a criminal justice scholar and professor at Harvard Law, doesn’t see any endpoint in a comment made about the practice, “We are likely to come ever closer to a world in which the law on the books makes everyone a felon and in which prosecutors and the police both define the law on the street and decide who has violated it,” for a necessity of charge stacking is the flexible interpretations of laws by enforcers of it. Police must also be mentioned in the same breath, as most people only care about a police force that "cleans up the streets".

Prosecutors cannot wear all the blame. A major problem is that public pressure makes stacking charges too tantalizing for prosecutors. This is especially true when a public servant, such as a District Attorney, has to prove him/herself to the public. How often do news sources elaborate on injustice committed against possible criminals, or courtroom civility versus crimes that have been or have potentially been committed? How often are public and private attorney's rewarded for convictions rather than fair practices?

Prosecutors look to improve their “courtroom stats” to gain reputation and status. Stacking charges increases wins, because it is more difficult to defend a large number of charges. Adding more counts will increase the chances of a lengthy and expensive legal battle, which many defendants cannot afford. Plus, a defendant with five charges seems less guilty than one with ten or twenty or eighty charges.  All of this pressure can be leveraged against possibly innocent defendants causing them to believe it is in their best interest to plea-bargain rather than chance losing in open court.

If public and private pressure push lawyers and police to practice stacking, than perhaps the third branch of government might be capable of helping? Why wouldn't the legislature attempt to curb this practice?


Richard McAdams writes in his paper, The Political Economy of Criminal Law and Procedure: the Pessimists’ View, legislatures tend to care about their constituent’s preferences, which is generally more concerned with proper punishment of heinous crimes, than the content of criminal statutes. Plus, police and prosecutors have a strong lobby for expanding criminal liability. That is why legislatures write broad statutes that make it easier to punish particular individuals even though the statutes also allow for the punishment of conduct that legislatures do not want to be penalized. In short, almost nothing is being done on capitol hill to assuage this problem.



None of the three branches of government have a foreseeable reason to limit this extensive practice. No branch has a need to check one another, and no group or body, governmental or otherwise, has done much to rein in this problem allowing it and innocent or less guilty defendants to fall through the cracks.