Thursday, December 17, 2009

The Charlotte Observer versus Peter Gilchrist

December 14, 2009

In its front-page article skewering retiring Mecklenburg County District Attorney Peter Gilchrist yesterday, the Charlotte Observer stressed that his Assistant D.A.s dismissed 52% of the felonies that were resolved during 2008.

We all know statistics can be mighty misleading, and this one certainly is. While the Observer included a sidebar entitled “How Dismissals Work” that described one way in which the stats are misleading (in short, consolidating charges under one agreed upon sentence make the conviction rate higher, with no change in result), the article does not mention the more easily correctable problem: overcharging.

A more cynical man than me could surmise that the Observer did not see fit to mention this issue because it is the fault of the local police departments. But I won’t go there.

Here’s how overcharging works. Let’s say a college student, Joe Partier, is stopped by police driving back from picking up an ounce of cocaine – he and his buddies had pooled their money to buy it for an upcoming big house party. The police officer finds the cocaine, and arrests Partier. The officer has done well.

But the officer has also been trained to charge defendant Partier with as much as possible, so he takes arrest warrants to the magistrate charging Joe with all of these separate felonies:

1. Trafficking in cocaine by possession.
2. Trafficking in cocaine by transportation.
3. Possession with intent to sell and deliver cocaine.
4. Possession of cocaine.
5. Maintaining a vehicle for the use/possession of controlled substances.

All five charges arise out of the same set of facts. And even though Joe Partier is a first-offender (and possessed no firearm), because the cocaine was more than 28 grams, i.e. one ounce, the trafficking statute requires a mandatory prison sentence of 35 to 42 months.
Whether such mandatory minimum prison sentences make any sense for first-time offenders like Joe is an argument for another day.

The point here is that the police department should know by now that the likely resolution in court is going to be a plea agreement to one count of trafficking, Joe goes up the river for his three years with no parole, and the other four charges are dismissed.

Eighty percent of the charges – 4 of the 5 – are dismissed, but is there any valid criticism that this outcome is to lenient? I doubt it.