What is Charge Stacking?
Charge stacking refers to the practice of prosecutors piling on numerous charges in a criminal case. Most states have laws that allow for multiple charges for an offense. For example, if a Defendant commits battery against a family member, and also causes an injury to that family member, there may be a law that allows for multiple charges against the Defendant.
There is, however, a balance to this practice. We see it frequently in domestic assault/battery cases where the law calls for each act of violence or even mere threat of violence to be charged as a separate crime. Prosecutors have seen this practice abused by zealous law enforcement officers that don’t understand the family dynamic or the nature of domestic relationships. Many times when speaking with a law enforcement officer, they have been asked "why did you charge him with 12 counts of felony strangulation? He only put his hands around her neck for a few minutes!". In these cases , prosecutors will charge the offenses yet often will agree to a plea to one or two counts to settle the matter.
This is not always the case. In a recent prosecution, the Jefferson County Prosecutor’s Office in Colorado attempted to prosecute a man for a felony and often misdemeanor counts of sexual assault against a minor. In that case, each time the Defendant had a sexual contact with a minor, they would charge him with a separate count. They were never very clear on the number of counts brought because they would include counts on which a summons had never been served.
In that case, the Defendant hired an attorney who was familiar with the law and the facts of the case. That attorney made a motion to dismiss all but the most serious of felony offenses. The trial court agreed. While they were perhaps culpable in some lesser degree, the prosecutor attempted to punish a man for behavior that he had done on several prior occasions to other women with whom he had an adult consensual relationship.
Charge Stacking Under the Law
There has been much discussion about the legality of "charge stacking" or the "prosecutorial tactic of adding multiple charges to a case in order to extract pleas or make it more difficult to go to trial." So what are the legal implications of charge stacking? And why does it have such a negative connotation? Perhaps because defendants are often left with little option but to plead guilty to a greater or additional offense than they committed. As such, charge stacking is often seen as a coercive tactic. Practically speaking, if you have a defendant who is guilty of a misdemeanor and you charge them with a felony, they may be motivated to plead guilty to the lesser offense even if the facts do not always warrant the imposition of that charge.
The United States Supreme Court has held that when evaluating charging decisions of prosecutors, courts must defer to their discretion beyond the most extreme of cases. See, for example, United States v. Bistrian, 448 F. 3d 10, 17 (3d Cir. 2006) advising that prosecutorial charging decisions are entitled to broad discretion and ought not be interfered with. Of course, unlawfully motivated prosecutions will not be tolerated. However, selective enforcement is not unconstitutional if it is motivated out of desire to enforce the law.
Many states have prosecutorial standards which would discourage the inappropriate use of charge stacking. For example, in Minnesota, in 2012, the Minnesota Supreme Court held that prosecutorial misconduct includes charging a defendant with more offenses than the prosecutor believes he can prove beyond a reasonable doubt. See, State v. Warren, 817 N.W. 2d 510, 525 (Minn. 2012). In so holding, the Court noted that charging more offenses creates the risk that the jury may convict the defendant where it might not have if a single or fewer added charges had been brought.
Other state courts also address improper "bundling" by requiring the prosecution to allocate its evidence to individual counts in the Indictment. This approach, however, requires the prosecution to commit to a theory and also to understand this potential theory of the defense prior to trial. These requirements make the prosecution’s job easier because, if done properly, they will know the evidence needed to meet their burden for each charge brought.
Some courts have strictly limited "stacking" sure to deter incentivizing the defendant to plead guilty to a more serious offense. At least one Oklahoma Circuit Court has held that a prosecutor may not charge the same conduct in both an adult and juvenile count of an Indictment in the same proceeding "because a juvenile cannot be sentenced to a term of imprisonment; thus, allowing a prosecutor’s threat of a term of imprisonment for a felony if a defendant does not plead to a lesser, jail-able misdemeanor, which in truth carries nowhere near the sentence sought in all instances." See, Johnson v. State, 2015 WL 4198346 (Okla. Crim. App., 2015).
Finally, so what the Court of Appeals of Pennsylvania recently held was a violation of a Defendant’s rights. In 2015 in Commonwealth v. Larson, 200 A.3d 721 (Pa. Super. 2018), the Superior Court of Pennsylvania held that the practice of charging a one-time event as multiple offenses with multiple counts of Criminal Attempt and Theft by Unlawful Taking charges in the same indictment was impermissible "charge stacking" that violated the defendant’s constitutional rights. Further, it opined that such conduct would likely not have been permitted in a non-unified trial court.
Is Charge Stacking Legal?
To say that there is no ripened consensus on whether charging someone multiple crimes is a crime in itself raises the question of just how bizarre our court rules have become. Generally, "stacking" charges is perfectly legal. Prosecutors do so routinely when they think they have a good case with a "safety net" of backup charges just in case the jurors don’t buy the theory of the case. In federal court, it is a regular occurrence to see the Second Superseding Indictment in which a prosecutor adds more and more charges, usually just before trial, because that prosecutor believes that the case may be lost if a particular charge is not proved beyond a reasonable doubt.
Stacking charges is not illegal, until it is. This depends in large part on the skill of one’s criminal defense attorney to explain the law. For example, sometimes motive is an element of the charged crime, as it is in 1st degree murder. See CAL Penal Code Section 187. There, the prosecutor must prove he had the motive to kill. See People v. Stitely (2005) 35 C4th 514, 535. However, it is unlawful for the prosecutor to "stack" the motive element by doing things such as charging (1) depraved heart murder, (2) 1st degree premeditated murder, and (3) motive to kill. Such stacking might cause the jurors to be unable to agree upon a specific intent, thus causing a convict of a non-specific crime.
Supporting Arguments for Charge Stacking and Reasons Against Charge Stacking
Experts are divided on whether charge stacking promotes or hinders the overall process. Proponents of the practice say that it is a deterrent, a way to discourage criminals from repeating the same offenses. "When they see that there are multiple charges involved, they have greater concern about the fact that they’ve committed two or three offenses as opposed to just one. As a result, the penalty is even higher," says criminal defense attorney Jessica Puls. "It’s also a waste of taxpayer money to sue for one small crime when they could throw in additional charges and by doing so, save money that would otherwise be used for the larger crime and only prosecute for the least of the charges—and do so in a more efficient manner," she added.
Prosecutors, such as Peter Neeson, a former federal prosecutor, also say that charge stacking "brings the full force of the law to bear." By not stacking charges against defendants who commit similar crimes, the federal criminal justice system creates inconsistencies. "If you break into 20 cars and stole change out of each of them, does it make sense that someone goes to jail for life for that? No, but under our current laws, that’s what you’d be facing," says Neeson. "However, if someone were to stack those charges against you, charges for those 20 crimes would be punished fairly , rather than inappropriately harshly."
On the other hand, critics say that such practices lead to an increased number of wrongful convictions. "When a prosecutor throws in those charges, it makes it very hard to defend yourself. There is more of a chance that someone could plead guilty to something they didn’t do because they fear what the outcome may be should they actually go to trial. The risks that are taken by pleading guilty can ruin someone’s life," said wrongful conviction expert Ali Sweeney. "I mean, that’s exactly why we have the exoneration project here at NYU. To help people who have been wrongfully convicted. If the prosecutors were held to a standard that prevented them from stacking charges or throwing the book at people, we wouldn’t need so many resources to exonerate the innocent," she added.
In 2013, The New York Times published an op-ed that argued against the merits of charge stacking, saying it made the criminal justice system unreliable. "Of course, the system also relies on incentives to lure low-level offenders into ‘cooperating’ by furnishing information that may hand prosecutors charges in exchange for reduced sentences."
While the legal community remains divided on the issue of charge stacking, it’s apparent that it’s here to stay.
Case Examples of Charge Stacking in Real Life
In a number of instances, courts have called foul on the prosecution for attempting to stack charges against defendants. In doing so, the courts have pointed out both the practical and legal problems of charge stacking.
R v H.(D.), 2009 CanLII 8510 (ON S.C.):
Counsel for the Defence argued that the accused were not guilty of the election offences, and referred to an argument made in a similar case R. v. Hunter 2007 CanLII 770. In that case, the accused was charged with violating subsections (1) and (2); this was seen as charge stacking. The court found that it was unwise of the Crown to prosecute on both charges. Such charges should be brought separately, with the one which was of greater public concern being dealt with first.
In this case, the Judge quotes Justice Sheard from R. v. Hunter:
The problems with this indictment are more than mere inefficiency. They go to the heart of what the accused has to meet. The accused is entitled to know precisely what he has to defend against. No person should have to meet the conscientious reasonable doubt standard on a whole series of offences when trial of one simple count may be sufficient to give the Crown the result it seeks.
Clearly, charge stacking could frustrate the innocent man by placing him in a position where he is forced to prove his innocence as to a number of counts when it is highly likely that there would be no prosecution at all if the Crown was confined to prosecuting one or a smaller number of serious charges. In addition, the accused can suffer great prejudice in mounting a defence which he would not otherwise plan for if he were aware of the true scope of the charges against him.
An accused man is entitled to know the specific case he has to meet. He is not enticed to enter a guilty plea through a charge stack that has the potential to enhance his sentence. He is not being accused of, and expected to defend himself against, lesser charges simply because the Crown wants to see him convicted and is prepared to countenance what amounts to an abuse of process of its own making to secure that conviction. This is not to belittle the seriousness of these later offences but rather to observe the degree of wisdom and justice that has been reflected by this Court in the past when it comes to sentencing.
R. v. Campbell-Piotowicz, 2013 ONSC 3585:
In this case, the Crown’s prosecution of two accused men including the applicant was substantially based on the use of wiretap evidence, which revealed the operation of an organized crime group in Ontario. The Police’s primary objective had been to investigate and prosecute those who orchestrated an operation that sold cocaine and marijuana. However, many of the offences charged were related only to simple possession or possession for the purpose of trafficking, charges that could have been proven without the use of wiretap evidence.
The Judge distinguished between the "criminal enterprise" and "simple possession" charges. His Honour emphasized that to prosecute charges separately on the same set of facts could cause "confusion of issues at trial" and be unfair to the accused. Further, to prosecute separate offences by real trial dates would allow for some forfeiture of the right to be tried "in a reasonable time".
R. v. Fagunwa, 2008 CanLII 39196 (S.C.):
In this case, the accused had been stopped by police and was found to be in possession of a small amount of cocaine and cash. When the drugs were examined at the lab, it came to light that there were a number of largely inoffensive drugs in the cocaine. As a result, the police officer had increased the possession charge to a trafficking charge, presumably stemming from the presence of the other drugs.
Despite the judge’s queries as to the involvement of the other drugs, the Crown prosecutor insisted that they were the subject of the trafficking charge. In the end, the judge held the Crown to its election, and confined the prosecution to possession for the purpose of trafficking.
R. v. Cornend, 2011 QCCQ 175:
The accused was charged with firing a weapon in the direction of a moving vehicle without causation of injury or death. It came to light that only one shell casing was found in the vicinity of the car; it was never established exactly what had occurred. Noting that the Prosecutor had the option to proceed with alternative counts on the same facts, the Judge struck out the count concerning aggravated assault. Mr. Justice Guibord stated in his verdict that the Prosecutor "should respect the Canadian Charter of Rights and Freedoms".
How to Reform the Practice of Charge Stacking
The problematic consequences of charge stacking have led to significant debate over whether legislative, judicial or prosecutorial reforms are warranted. In addition to the well-documented domestic problems associated with charge stacking in the United States, it has also been criticized abroad. In the United Kingdom, the Home Office Committee on the Protection of the Public criticized the practice of charge stacking where it results in the "creation of new offences which straddle a particular threshold and attract a mandatory minimum sentence." The committee suggested a legislative fix but acknowledged that "[c]hange of this type may not be compatible with the basic principle that an offence should be seen as a disincentive only to those behaviours which society believes should never be undertaken."
Reform proposals in the United States have focused on the use of sentence enhancement statutes and the problem of consecutive sentencing. A number of states have adopted constitutional amendments, legislative reforms or other policy changes that limit or eliminate mandatory minimum sentences, particularly for certain classes of non-violent offenders. Such reforms have been endorsed by prominent bodies such as the American Civil Liberties Union, the Brennan Center for Justice, the Human Rights Defense Center, the Institute for Justice, the Leadership Conference on Civil and Human Rights, the National Association of Criminal Defense Lawyers, the National Association of Federal Defenders, the National Council on Crime and Delinquency, the National Council on Juvenile and Family Court Judges, the Pretrial Justice Institute and the Sentencing Project.
Perhaps most importantly, in recent years prosecutors and legislatures across the country have begun to more closely examine their own charging policies and practices. In 2014, the Manhattan District Attorney’s Office issued a memorandum announcing several policy changes for various types of low-level offenses, such as New York’s turnstile-jumping, trespass, shoplifting and marijuana criminalization laws — not all of which are misdemeanors to begin with. These changes included refraining from filing charges for "low-level offenses" and implementing what the DA’s Office calls a "programmatic alternative model" focusing on diversion over incarceration. Similar reforms for "low-level" crimes such as marijuana possession, loitering and small-scale cocaine distribution have been adopted as part of a youth prison reduction project in Washington D.C . The Denver District Attorney’s Office also announced in 2014 that they would stop charging people under the "bad check" statute for checks valued under $50. Prosecutorial efforts to reject or minimize the use of certain charges in Alabama and Arizona have similar goals.
Courts have similarly begun to examine the validity and propriety of charge stacking. In United States v. Apfelbaum, the Third Circuit examined a challenge by a defendant to his conviction for carjacking and "use of" the stolen vehicle in a robbery, to which he had pled guilty. In each count, the defendant faced a potential 15-year sentence plus a five-year rebuttable statutory presumption for a consecutive sentence. Facing a potential 20-year sentence for what the court acknowledged were relatively minor offenses, the panel noted its concerns about the harshness of the potential sentence, but ultimately rejected the challenge, finding that the punishment was allowed by statute and therefore did not "shock the conscience." However, Judge Rendell’s lengthy concurrence stated her personal view that "charge-stacking, more than any other facet of modern criminal practice, has brought us to the moment when we may be faced with the limitations, if not abolition, of the ‘real,’ as opposed to the imagined, or theoretical, ‘consequences’ of a guilty plea." She stated that there is "no compelling reason why prosecutors must stack multiple counts of what may be regarded as minor offenses into a single indictment or plea agreement," and argued that for "every strike, for every jab at the defendant’s nose, for every little injury, one might offer the defendant a reward" to plead guilty.
Activist groups in the United States, such as the Southern Center for Human Rights (submitting a letter signed by 101 criminal defense and civil rights organizations in support of a recent motion to dismiss in an Alabama case), and a number of other organizations in other countries and jurisdictions have called for additional limits on prosecutorial charging discretion, but face a challenging political climate. In Connecticut and Hawaii, legislators considered bills to limit or prohibit the use of charge stacking under their state’s habitual offender statutes for certain types of non-violent offenses. Illinois Governor Bruce Rauner signed a bill to retroactively end a requirement of consecutive sentencing for all crimes committed on the same day. While some states are making efforts to reform their criminal justice systems, charge stacking remains a valid concern for many defendants facing increasingly severe sentences.
