Andrew
Scott

Because of the discretion that a prosecutor has when deciding what charges to bring against a person, they hold a great amount of power in the judicial process and that power must be exercised with a commitment to fairness and justice. That decision can determine whether someone is facing a misdemeanor or a felony, whether they remain in the community while a case is pending, what kind of plea offer makes sense, and what the consequences may be if the case goes to trial.

With that power comes a responsibility to make charging decisions based on the evidence and the interests of justice. If the evidence supports a charge, and the prosecutor believes that offense is serious enough that it should be prosecuted, it should, as a matter of general process, be charged at the beginning of the case. Prosecutors should not keep known charges in reserve so they can be added later if plea negotiations fail.

That does not mean charging every offense that can possibly be charged. Prosecutors also have a responsibility not to overcharge. There are cases where several statutes might technically apply to the same conduct. There are charges that may be supported by probable cause but add little to the fair resolution of the case. There are also situations where the interests of justice call for restraint. Good prosecutors are expected to exercise judgment.

But that judgment should be exercised when the charging decision is made. If the evidence supports a felony and the prosecutor believes the conduct warrants felony prosecution, charge the felony. If the prosecutor concludes that the case should be prosecuted as a misdemeanor, charge the misdemeanor.

What concerns me is a different situation: a misdemeanor is filed, the case is worked for months, the evidence is known, discovery is exchanged, attorneys spend time negotiating a resolution, and then negotiations fail. The same conduct is then recharged as a felony even though the facts supporting the felony were known when the misdemeanor was originally filed. Nothing about the evidence changed. What changed was that the defendant did not accept the proposed resolution. I do not believe that is how charging authority should ordinarily be exercised.

A criminal charge is more than a negotiating position. It is an exercise of the authority of the State. Prosecutors represent the public, and their job is not simply to win cases or obtain guilty pleas. Their responsibility is to seek justice. The charging decision should reflect the prosecutor's considered judgment about what the evidence proves and what charges are appropriate — not what charges might provide useful leverage later.

There may, of course, be legitimate reasons to add charges after a case has been filed. Investigations continue. New witnesses come forward. Forensic testing produces results. Additional victims may be identified. Evidence that initially appeared unreliable may be corroborated. When new information materially changes the case, prosecutors must be able to respond to it; that is very different from amending a charge based entirely on information the prosecutor already had.

People Should Know What the Case Is

There is another practical reason for this policy: people make important decisions based on the charges that have actually been filed.

A defendant deciding whether to accept a plea offer needs to know what the State believes the case really is. A person cannot rationally evaluate a proposed resolution if part of the prosecution is being held in reserve.

Victims need that information too. Victims often look at the charges that are filed with a critical eye, looking for justice. To charge a misdemeanor when a felony is appropriate minimizes the harm done. A victim evaluating a proposed plea agreement should know the full extent of the criminal conduct the prosecutor believes can and should be proved. Victims should not spend months believing the State has determined that a case is appropriately prosecuted as a misdemeanor only to discover later that prosecutors believed a felony charge was justified all along.

The same is true for the public. Criminal charges are public records. They are the State's formal statement about what it alleges occurred. Those records should give the public an accurate picture of the prosecution. If we believe a felony should be prosecuted, the record should say so. If we believe a misdemeanor is the appropriate charge, that should mean something as well.

It Also Makes the Courts Work Better

Complete charging is not only about fairness. It is good case management. Once a case is filed, people start working on it. Defense attorneys investigate it. Prosecutors review evidence and speak with witnesses. Judges make release decisions and establish schedules. Discovery is exchanged. Motions are researched and filed. Victims and witnesses make plans around court dates. Trial time is reserved.

When the basic nature of the case changes months later based on information that was available from the beginning, some of that work has to be done again. A felony may involve different potential penalties, different motions, different defense preparation, and different decisions about experts or investigation. Court dates may have to be continued. Witnesses and victims may have to wait longer for a resolution. Judges have to find additional time on already crowded calendars. That is unnecessary when the information supporting the charge was available from the outset.

Better Information Produces Better Plea Decisions

I support plea bargaining. It is an essential part of our criminal justice system, and a reasonable plea agreement can serve defendants, victims, courts, and the public better than a trial. But plea bargaining works best when everyone understands what is actually being negotiated.

The prosecutor should be able to say: these are the charges the evidence supports, this is how we evaluate the case, and this is the resolution we believe is fair. The defendant and defense attorney can then evaluate that offer knowing what the State's case actually is. Victims can give their views knowing what conduct is being resolved. And the court can evaluate the eventual agreement with a clearer understanding of the case.

I believe that produces better plea agreements and more durable resolutions. It also reduces the concern that declining an offer may cause the accusation itself to become more serious even though nothing about the underlying evidence has changed.

The Policy I Would Follow

As Prosecuting Attorney, I would expect charging attorneys to make a careful assessment of the evidence before filing a case.

Don't overcharge. Don't file counts simply because they are available. Don't use the threat of unnecessary charges to force a plea.

But once we determine that an offense is supported by the evidence and is serious enough that justice requires us to prosecute it, charge it. If genuinely new evidence later changes the case, we will change the charges when appropriate. We should never be afraid to respond to new facts.

What we should not do is treat an already-known felony as something to keep in our back pocket while prosecuting a misdemeanor, only to bring out the felony months later because negotiations did not produce the result we wanted.

Prosecutorial discretion is necessary. So is restraint. And so is consistency. Defendants should know what they are accused of. Victims should know what the State intends to prosecute. Judges should know what case they are being asked to manage. And the public record should accurately reflect the prosecutor's assessment of the evidence.

That is how I would use the charging authority entrusted to the Prosecuting Attorney's Office.