As Congress Probes Over-Criminalization,
What about the Problem of Over-Prosecution?

Center for Prosecutor Integrity
June 21, 2013

Congress has recently taken steps to look into long-standing problems in our criminal justice system, especially concerns with over-criminalization and racial disparities.

Earlier this year, Senators Paul Rand and Patrick Leahy introduced the Justice Safety Valve Act (S. 619), followed by introduction of the same bill in the House by Rep. Bobby Scott. The JSVA would grant federal judges more sentencing discretion.

Then in May, the House Judiciary Committee created a bipartisan, 10-member task force to review the 4,500 crimes on the federal books.

Not to be outdone, Rep. Frank Wolf (R-VA) and Chaka Fattah (D-PA), chair and ranking member of the House Appropriations Committee, have created a separate task force to review the federal correctional system.
These moves are laudable. But what about the related problems of wrongful convictions and over- prosecution?

Wrongful Convictions

Over 1,100 wrongful convictions have confirmed to date. A recent report from the DC-based Urban Institute analyzed DNA samples from men in Virginia prisons found that for 15% of persons serving time on a rape conviction, there was no DNA match! (1)

In other words, one out of seven persons in prison for rape had been wrongly convicted.

Larry Hugee: Victim of Over- Prosecution

Over-prosecution is when a prosecutor charges a person without probable cause or engages in other forms of unethical conduct.

Take the case of Larry Hugee of Fruitland, Maryland, who was sentenced to 25 years in prison for armed robbery and assault. One of the key witnesses in the trial had a well-known history of drug addiction and serious mental health problems — but the prosecutor never disclosed this information to defense counsel.

In 2011 a petition was filed for post-conviction relief. On May 16, 2013, the conviction was reversed.

43% of Wrongful Convictions Arise from Misconduct

The National Registry of Exonerations reports 43% of all wrongful convictions arise from misconduct by the prosecutor or other officials (2). For sexual assault and domestic violence cases, the most common types of prosecutor error are (3) :

1. Charging without probable cause
2. Selective prosecution
3. Concealment of evidence
4. Failure to prosecute perjury

Eroding Victim Credibility

Over-zealous prosecutors cast a dark shadow on the integrity of our nation’s criminal justice system.
Solutions to the problem of prosecutor misconduct include Conviction Integrity Units, Innocence Commissions, open-discovery files, mandatory reporting, and qualified immunity.

We call on members of Congress to assure that the current bipartisan efforts to rein in over-criminalization also address the problem of over-prosecution.