What is Prosecutorial Stacking of Charges?

Arizona voters are likely to see a measure on the ballots in November that would address prosecutorial “stacking” of charges and mandate other sentencing reforms.

In Arizona, repeat felony offenders face harsher sentencing guidelines than first-time offenders. When prosecutors “stack” charges, defendants can be sentenced as repeat offenders even if the defendant has no prior convictions. Under current guidelines, as long as a prosecutor can prove that crimes were committed on separate occasions, the crimes can be prosecuted in the same trial but for the second and subsequent offenses, the defendant is sentenced as a repeat offender.

A common criticism of stacking is that the tactic is primarily used to encourage defendants to accept plea deals. During the pre-trial phase, prosecutors will communicate to defendants that the prosecutor will be requesting an enhanced sentence at trial, treating the defendant as a repeat offender, even in situations where it is not clear that the crimes would be considered separate offenses. Then, the defendant is so terrified of receiving such a long sentence, the defendant agrees to a plea deal and the case doesn’t go to trial.

The new proposal, which was included in a law previously vetoed by the Arizona governor, would limit reoffender enhancements to crimes committed subsequent to the defendant’s conviction for another felony.

Supporters of stacking argue that, under the new proposal, a criminal who avoids detection and commits multiple crimes before being caught will also avoid sentencing enhancements for committing multiple felonies, whereas someone who is caught and convicted for one crime and then reoffends, faces stiffer penalties.

Stacking vs. “Piling On”

Stacking is commonly confused with the practice simply known as “piling on.” Piling on is the practice of charging a defendant with every conceivable charge that could result from the defendant’s actions to encourage the defendant to plead guilty to at least one of the charges. This is completely legal as long as each of the crimes has at least one different element.

Here is an example. Let’s say that John has a particularly bad night. After a night of drinking, he and his roommate get into a verbal argument, push each other around, and then John takes his roommate’s car without permission. He drives to a nearby Walmart, parks the vehicle, and falls asleep. His roommate calls the police and reports that John assaulted him and took his car. John is located and arrested. He is charged with DUI, public intoxication, property damage, resisting arrest, and aggravated assault. Also, some marijuana and a set of nunchucks were found in the car, so he is also charged with drug possession and illegal weapon possession. Some of these charges might have a remote chance of resulting in an actual conviction, but when John is faced with the possibility of serving the cumulative sentence for all those charges or a plea deal for felony vehicle theft, he might take the deal, even though some of the basic elements of this crime were arguably not met. This is an example of “piling on.”

In a different scenario, let’s say John is not arrested that night. Instead, he comes home the next morning and sees that his roommate had a big party in his absence and there are strangers passed out in John’s bed. John and his roommate actually get into a fist fight this time, and John again leaves in his roommate’s car and drives back to the Walmart, where he is subsequently located and arrested, with a blood alcohol level still above the legal limit. Like the first scenario, he is charged with DUI, public intoxication, property damage, resisting arrest, two counts of felony assault, and vehicle theft, along with drug possession and weapons possession. But, the prosecutor charges the first assault as a felony assault (which does not seem to rise to the level of a felony) and charges the second assault and the vehicle theft as a separate incident and calculates the sentence with the repeat offender enhancement. This is an example of stacking.

Of course, a good defense attorney can objectively look at this situation and see that many of these charges will not likely result in convictions, that it can be argued that no felonies were even committed, and that it could also be argued that this was one “event” and that the repeat offender enhancements are not appropriate. But, given the number of charges and time and energy involved in refuting each one, and arguing that the repeat offender enhancements don’t apply, John will need a dedicated defense attorney who has extensive experience negotiating with the prosecutors in this jurisdiction.

How Much Can Stacking Increase a Sentence?

Stacking can increase a sentence substantially and when charges are stacked and piled on, a defendant could be confronted with a sentence that is triple or quadruple the amount that is offered as part of a plea deal.

One notable case involved Quartavious Davis, a 19-year-old who was involved in seven armed robberies over a three-month period in Florida. He and two other boys committed several robberies of businesses, but other than a security guard being injured with pepper spray, no one was seriously injured. While these were very serious crimes, there was a huge disparity in the sentence given to Mr. Davis, who went to trial, and the other two boys, who accepted plea deals. The two others were sentenced to 9 to 20 years, but Mr. Davis was sentenced to 162 years without possibility of parole. Mr. Davis has since been involved in a series of high-profile appeals contesting the warrantless use of cell phone location data that was used as evidence in his case.

In 1978, around the time Arizona enacted some of its enhanced sentencing statutes, the Supreme Court ruled on one of the landmark cases regarding the legality of using the threat of repeat offender enhanced sentencing during the plea-bargaining process. In this case, Bordenkircher v. Hayes, the defendant was caught writing a hot check for $88. The defendant had two prior felony convictions, so the prosecutor told him that if he did not plead guilty and accept a 5-year sentence, the prosecutor would ask for a life sentence at trial, which was permitted under the sentencing guidelines for a third felony conviction. The defendant did not accept the plea deal, went to trial, and was indeed given a life sentence. The case was appealed to the U.S. Supreme Court, but the Court held that, as long as the “threats” of using the repeat offender statute were contained in the original indictment, if the defendant refuses the plea deal, there is no violation of due process when the threat is actually carried out. In the opinion, the Court stated that it “has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.”

If you are being indicted as a repeat offender, a defense attorney can advocate on your behalf and advise you as to whether a plea deal is in your best interest. If you are in this situation, it is critical to seek expert advice as soon as possible.

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About Tiffney Johnson

Tiffney Johnson is an immigration attorney in Tucson, Arizona. Tiffney has significant experience in the field of consular "crimmigration" (visa eligibility consequences of criminal convictions), complex citizenship issues, and visa and passport policy. She also focuses her practice on O visas for performing artists and procuring national interest waivers for self-employed professionals applying for immigrant visas. Prior to law school, she served as a consular officer with the U.S. Department of State for 15 years.