The Charging Trap: Is Throwing the Book at a Suspect Necessary?

A Pennsylvania DA says authorities should avoid the temptation to apply the maximum charges possible to ensure a conviction. He’s backed up by a reporter who found disparities in overcharging in six of the state’s counties, using a database created by Measures for Justice.

Felony or misdemeanor?

Simple assault or aggravated assault?

The difference in charges may not seem that great, but it can have large and lasting ramifications.

In Pennsylvania, what charges get filed and who gets to make that initial decision varies from county to county.

All criminal charges in Cumberland County, for instance, must be approved by the district attorney’s office before being filed.


Cumberland County (PA) District Attorney David Freed. Photo by Michael Bupp/The Sentinel

“We’re 20-plus years into that here in Cumberland County, so there are a lot of people who have worked in the system who don’t know any different,” Cumberland County District Attorney David Freed said.

But in neighboring Franklin, Adams, Perry, Dauphin and York counties, the initial decision of what to charge is largely driven by police.

Dauphin County requires prosecutor’s approval of some charges but not all, according to the Pennsylvania District Attorneys’ Association.

“You want to have the appropriate charge charged,” Freed said. “You don’t want to be in a situation where I’m going to charge a million things so that I end up with one thing. You want to charge a case appropriately.”

Bringing a prosecutor into the initial charging decision may provide a buffer to overcharging, according an analysis of court records conducted by The Sentinel.

The Sentinel reviewed all criminal cases filed in Cumberland, Dauphin, Franklin, Adams, York and Perry counties in 2016 and separated out all simple assaults and aggravated assaults.

One of the main differences between defining simple assault and aggravated assault is the severity of the injury to the victim.

For simple assault, the defining standard is causing or attempting to cause bodily injury. Aggravated assault requires causing or attempting to cause serious bodily injury. However, what accounts for “serious” injury can be subjective.

Cumberland County featured the lowest ratio of charged aggravated assault to simple assault than any of the surrounding counties, according to The Sentinel’s analysis.

More than 88 percent of all charged assaults in the county in 2016 were deemed simple assault, the analysis found. That is roughly nine to 18 percentage points higher than all other counties.

“We have to make sure we are charging appropriately and not just charging agg so we can get the simple,” Freed said.

Raising Costs

If defendants are being charged with felony aggravated assault in one county or misdemeanor simple assault in another for the same behavior, it can raise a host of costs for both the defendant and the county.

“(A case) can result in increased bail if it’s charged inappropriately high,” Freed said.

In 2016, the median bail for a person charged with simple assault, but not aggravated assault, in Cumberland County was $10,000, according to court records.

Less than seven percent of those defendants had bail set at more than $50,000. Nearly 40 percent were released without having to pay any bail, according to The Sentinel’s analysis.

Less than one quarter of all defendants charged with simple assault last year in Cumberland County were unable to post bail, court records show.

At the same time, the median bail for a person charged with aggravated assault in the county was $50,000, five times higher than the misdemeanor counterpart, according to The Sentinel analysis.

Nearly half of all these defendants were unable to post bail, The Sentinel found.

Any defendant who is unable to post bail is taken to their county jail or prison where they remain until they come up with the money, have their bail reduced or complete their case.

Sitting at only 54 percent of total capacity, Cumberland County Prison had the lowest utilization of the six counties examined, according to Measures for Justice, a nonprofit organization that provides county-level data on criminal justice systems.

Dauphin and Adams counties jails were both above 100 percent capacity. None of the other counties had jail capacity utilization below 80 percent, according to Measures for Justice.

Cumberland County also had the highest percentage of defendants released pretrial between 2009 and 2013, with roughly 85 percent of all defendants being released, according to Measures for Justice.

“At charging, we are making a probable cause determination,” Freed said. “It’s not beyond a reasonable doubt. … Do I have reasonable cause to show that someone tried to cause serious bodily injury?”

The Link Between Charge and Conviction

Freed said the determination and oversight at charging is not a guarantee the defendant will be convicted and does not necessarily mean charges will not be reduced as the case moves forward.

“I have probable cause to charge,” he said. “That doesn’t mean I have sufficient evidence to convict.”

However, Cumberland County also has the highest conviction rate of the six counties reviewed, according to Measures for Justice.

Nearly 87 percent of cases between 2009 and 2013 resulted in a conviction in Cumberland County. In Franklin County, that number was less than 73 percent, according to Measures for Justice.

“Reasonable minds can differ about what charges should be filed and what amount of charges should be filed,” Freed said. “Should you charge everything that can possibly be charged?

“I don’t have my head in the sand. I’m not going to sit here and say that doesn’t happen around the country,” he said. “That’s the policing every assistant district attorney has to do. That’s the policing every elected or appointed district attorney has to do. …

“You have to have that probable cause.”

Joshua Vaughn is a staff reporter for The Sentinel in Cumberland County, Pa. This is a slightly edited version of a story produced as a project for the 2017 John Jay/Measures for Justice fellowship. The original version can be read here. Readers’ comments are welcome.


Use of Force And Self-defense Results In Too Many Bogus Prosecutions!

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NYC Using DNA to Make Gun Charges Stick With Jurors

Gun charges in New York that hinge on officer testimony often don’t lead to jury convictions. To change that, the city is pursuing an ambitious and expensive plan to collect and test DNA from every gun recovered to build cases based on physical evidence.

For all of New York City’s success in reducing violent crime, only about half of the people arrested for carrying a loaded gun in the city get convicted. Juries like hard evidence and often mistrust cases that hinge on police testimony. To change that, the city is pursuing an ambitious and expensive plan to collect and test DNA from every gun recovered by police, reports The Trace. The goal is to boost the number of successful prosecutions and discourage the carrying of illegal weapons–“to make it radioactive to even pick up a gun,” said Richard Aborn, president of the nonprofit Citizens Crime Commission of New York City.

The New York program, which began in the summer of 2015, is expanding. Last year, the Office of the Chief Medical Examiner performed DNA tests for 1,682 gun cases, nearly quadruple the number from 2014. The city this month gave the office an additional $8 million to pay for 55 new employees to process gun swabs, plus training and equipment. That money amounts to about 10 percent of the office’s total annual budget. Police officials and the medical examiner’s office said they could not estimate the total cost of the swabbing and testing program since it would include staff time for police, prosecutors, and scientists, as well as equipment and training in several different departments and agencies.