“HOW A CASE IS CHARGED CAN HAVE A HUGE IMPACT”

Cops demonstrate their inherent bias through the charges they choose to level. Let’s talk about Sheila and George. Sheila was the trusted bookkeeper for a very successful company. Unfortunately, she wasn’t as trustworthy as the company thought. Over a period of two years Sheila diverted $350 a week of company receipts to her own bank account. George, on the other hand, was a successful black businessman who traveled abroad a lot. On one trip to China he came back through customs with a box full of DVDs. He had the receipt to show that he had paid for them, but customs declared them counterfeit and arrested George.

Sheila could have been charged with approximately one hundred separate counts of grand theft (the amount of each theft over the two-year period was in excess of $300) and could have faced up to five hundred years in prison. Fortunately for her, she was charged with one count of organized scheme to defraud. That’s a first-degree felony punishable by up to 30 years in prison and, in fact, she got off with just probation. Because she was only initially charged with just one criminal offense, her bond was very reasonable. George, on the other hand, could have been charged with just one count of dealing in stolen property. If convicted, he would have faced a maximum penalty of 15 years. Instead, for reasons I still don’t understand, law enforcement threw the book at George, charging him with a separate felony count for each of the several hundred DVD’s in his possession, subjecting him to a possible life sentence. His bond was actually over a million dollars before it was eventually reduced. He escaped the worst, but still went through hell and paid a huge price, both psychologically and financially, before the charges were dropped.

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American criminal law is both complex and arbitrary. The experiences of Sheila and George illustrate the wide latitude that law enforcement agents enjoy in deciding what charges to lodge against a person. The precise charge lodged against a person can make a huge difference in the penalty that is imposed if convicted. Will it be aggravated assault or simple assault? The first subjects the accused to a potential minimum mandatory prison term while the second might result only in probation. The arresting officer, whether consciously or not, is always performing an elaborate mental calculus when deciding which charges to apply. No law enforcement officer gets promoted for letting people go, but he also has to show probable cause in his arrest report to justify the charge. The more serious the charge, the more scrutiny it will get by the bond hearing judge and the prosecutor. On the other hand, the cop also knows that a serious charge might well be bargained down to something less serious in the give-and-take between prosecutor and defense lawyer. At that point, except for acting as a witness, the cop generally doesn’t care. He’s done his job and whether he charged a person correctly or not matters little to him. As a result of this calculus officers tend to overcharge and let things take their natural course. And, as always when spinning the roulette wheel of justice, which prosecutor gets a case and which magistrate presides over a bail hearing goes a long way toward determining how a case evolves.