STACKED: WHERE CRIMINAL CHARGE STACKING
HAPPENS — AND WHERE IT DOESN’T
INTRODUCTION
When prosecutors approached a first-time drug offender who had
sold a little over half a kilogram of marijuana, they offered him a deal:
plead guilty to fifteen years, or take the case to trial and risk worse.1
They “stacked” twenty charges against him to maximize his sentence.2
Each additional charge under 18 U.S.C. § 924(c) imposes a mandatory
minimum of twenty-five years.3 That is, twenty-five years consecutively.4 In this defendant’s case, charge stacking threatened over 100
years of imprisonment.5 The defendant took his chances with the jury.
He was not successful at trial: the jury convicted him of thirteen counts
and sentenced him to fifty-five years in prison, eligible for release at age
eighty.6 Then-Senator Jeff Sessions, a prominent conservative on criminal justice issues, noted that “the stacking issue is a problem.”7
This is charge stacking. It is not a new phenomenon. It can happen
to any defendant, regardless of social class or era. Examples date back
to the 1800s. In the 1800s, some defendants failed to keep the town’s
streets clean, so officials charged them three or four times, once for each
street.8 In another case, the government prosecuted unlicensed alcohol
retailers using one misdemeanor per sale, effectively procuring a life sentence.9 In the modern era, celebrity chef and businesswoman Martha
Stewart’s five-count indictment for a “tenuous” case of lying about insider trading has led some academics to call for a limiting “law of
counts” more broadly.10 Charge stacking can also extend to common
street crime and drug offenses.11 A prosecutor can convert stealing
a motor vehicle, a typical street offense, into more charges to include

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
1 See John. F. Stinneford, Dividing Crime, Multiplying Punishments, 48 U.C. DAVIS L. REV.
1955, 1961–63 (2015); Jason Pye, “Unjust, Cruel, and Even Irrational”: Stacking Charges Under
924(c), FREEDOMWORKS (Jan. 29, 2018), https://www.freedomworks.org/unjust-cruel-and-evenirrational-stacking-charges-under-924c/ [https://perma.cc/F8QD-F32J].
2 Pye, supra note 1.
3 18 U.S.C. § 924(c)(1)(C)(i).
4 Id. § 924(c)(1)(D)(ii).
5 Stinneford, supra note 1, at 1962–63.
6 Pye, supra note 1.
7 Id.
8 See Stinneford, supra note 1, at 2008.
9 Id. at 1957.
10 Michael L. Seigel & Christopher Slobogin, Prosecuting Martha: Federal Prosecutorial Power
and the Need for a Law of Counts, 109 PENN ST. L. REV. 1107, 1107–09 (2005).
11 NANCY FRAZIER, ENCYCLOPEDIA OF STREET CRIME IN AMERICA, at xxii (Jeffrey Ian
Ross ed., 2013) (“[S]treet crime refers to crimes connected to the urban lifestyle, against people and
property, committed in both public and private places.”).

1390

2023]

STACKED

1391

“unauthorized use of a vehicle and possession of stolen property.”12
Although not entirely a “street” offense, a goat farmer who accidentally
let his goats trespass faced 170 misdemeanors — one for each goat —
and up to sixty years in prison.13 His case, though, hailed not from the
nineteenth century, but from 2004.14 Charge stacking is not new, and it
can happen to anyone — no one is safe from the risk that government
can “divide crime and multiply punishment.”15
As commonly understood by academics, advocates, and the public,
this practice is pernicious, pervasive, and prejudicial to defendants’
rights.16 In this narrative, prosecutors charge overlapping and duplicative offenses to build pressure against criminal defendants when fewer
charges would suffice and more accurately capture defendants’ culpability.17 Whether federally or in the states, charge stacking results in
more plea bargains, undergirded by diminished chances at trial due to
extra charges against defendants.18 Large swathes of criminal defendants thus crumble beneath tall piles of charges, both federally and in
the states.
However, this common understanding of charge stacking is incomplete, mostly anecdotal, and needs empirical study. Until now, though,
data on charge stacking across states and the federal government have
been unavailable. This Note has new data from nationwide aggregators
of federal and state charging data that prior research has not previously
linked together. With these data, this Note provides two key findings
worthy of further research:
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
12 Meghan Holmes, Charge Stacking Forces Convicted to Serve Extra Jail Time, LA. WKLY.
(Mar. 25, 2019), http://www.louisianaweekly.com/charge-stacking-forces-convicted-to-serve-extrajail-time [https://perma.cc/UF4A-TT5R] (quoting Danny Engelberg, Chief of Trials at the Orleans
Parish Public Defenders Office).
13 David Greenwald, Khalid Berny: A Case of Discriminatory Prosecution by the Yolo County
District Attorney, DAVIS VANGUARD (Jan. 3, 2007), https://www.davisvanguard.org/2007/
01/khalid-berny-a-case-of-discriminatory-prosecution-by-the-yolo-county-district-attorney [https://
perma.cc/NDG4-XQRJ].
14 Id.
15 Stinneford, supra note 1, at 1955–56.
16 See, e.g., Andrew Manuel Crespo, The Hidden Law of Plea Bargaining, 118 COLUM. L. REV.
1303, 1313 n.31 (2018) (describing academic sources showing the connection between “chargestacking and increased sentence exposure,” “charge-stacking and increased risk of conviction,” and
“charge-stacking and defendant intimidation”); Mary Pat Flaherty & Joan Biskupic, Prosecutors
Can Stack the Deck, WASH. POST (Oct. 7, 1996), https://www.washingtonpost.com/archive/
politics/1996/10/07/prosecutors-can-stack-the-deck/9d327a82-135c-409f-a403-4ca099b3acb8 [https://
perma.cc/FE98-MKZB] (“‘Charge stacking’ — or stacking up counts against a defendant to provide incentive for bargaining . . . happens frequently.”); Holmes, supra note 12 (“In recent years,
national advocates for criminal justice reform have mounted a campaign to end charge stacking . . . .”); Resolution: Opposition to Stacking Charges, NAACP (2019), https://naacp.org/
resources/opposition-stacking-charges [https://perma.cc/B9RM-9T94] (“Prosecutors routinely ‘stack
charges’ against a defendant, thus building a very long potential prison sentence if convicted, and
then approach the defendant with a ‘plea deal’ that would result in a guaranteed, substantially
reduced charge and sentence if the defendant agrees to plead guilty to the reduced offense . . . .”).
17 See sources cited supra note 16.
18 See sources cited supra note 16.

1392

HARVARD LAW REVIEW

[Vol. 136:1390

(1) Some states charge more offenses per defendant and do so more
often than the federal government.
(2) Regardless of jurisdiction, more charges correlate with higher
rates of conviction.
First, this Note describes the basic rules of criminal procedure permitting a single case to have many criminal charges, and criticisms of
that result. Then, it describes theories on why more charges might unfairly promote more criminal convictions. That understanding of charge
stacking, this Note argues, is incomplete.
From there, this Note moves on to the data. It begins by describing
the sources of federal and state data and the methodology. Analysis
begins with federal data as context to ultimately compare with data
from Arkansas, Pennsylvania, Florida, and Tennessee. The state data
demonstrate that the examined states not only charge millions of offenses more than the federal government; they also face the same, if
not worse, associations between charging multiple offenses and criminal
defense outcomes, particularly guilty pleas and guilty verdicts. Finally,
this Note calls for more research. Some variables — race, gender,
and type of crime — are either not comprehensive or not available.
Importantly, though the data are consistent with charge stacking, they
do not prove it. Because this analysis suggests negative criminal justice
outcomes based on the number of charges, but the available data are
limited, more study should delve further into the prevalence and causes
of charge stacking.
A. How Charge Stacking Works
The Federal Rules of Criminal Procedure19 and all their state
counterparts20 permit prosecutors to charge multiple offenses — officially known as “charge joinder” — by joining multiple counts of a
crime upon a single defendant. The rules enable prosecutors to charge
a criminal defendant by overlapping or duplicating offenses and then,
after pressure on the defendant looms, agree to reduce the charges in
number or in severity in exchange for a guilty plea.21 Using this leverage, prosecutors can threaten a “trial penalty” by going to trial with all
of the charges, even if exaggerated.22 Charge stacking works because

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
FED. R. CRIM. P. 8(a).
See Crespo, supra note 16, at 1318 fig.1, n.45 (showing what kinds of factual joinder state
prosecutors are permitted to do).
21 Id. at 1309 (describing this process as “piling on,” “overreaching,” and “sliding down”).
22 Richard H. McAdams, The Political Economy of Criminal Law and Procedure: The
Pessimists’ View 2 (Univ. Chi. Pub. L. & Legal Theory, Working Paper No. 243, 2008) (“When any
one offense carries only a mild or moderate punishment, stacking charges allows the prosecutor to
threaten a far more severe punishment, one that even the prosecutor considers to be disproportionate to the offense.”).
19
20

2023]

STACKED

1393

the breadth of criminal law probably means any one criminal episode
constitutes multiple crimes.23 A burglary, after all, is trespassing, too.
B. Charge Stacking Is Criticized
Some observers describe charge stacking as a phenomenon endemic
to the discretion available to prosecutors, a “regular occurrence that is
part of a prosecutor’s leverage,” and a practice that has been increasing
in usage since the creation of three-strikes laws.24 It often involves
charging “overlapping, largely duplicative offenses.”25 Charge stacking
as a practice has been described as not only malignant but rampant,
with others observing that “[t]urning one crime into many is easily
done,”26 where drug offenses with conspiracy bring along “gun use,
money laundering, and a laundry list of other charges altogether.”27
Others see in powerful stories the pervasiveness of charge stacking
in each level of the criminal justice system. If charge stacking is taken
to its limit, one criminal justice scholar worried, “we are likely to come
ever closer to a world in which the law on the books makes everyone a
felon.”28 Charge stacking, in a phrase, “throws the book” at criminal
defendants. The point is not whether a case as absurd as 170 at-large
goats would ever go to trial — the district attorney, after much controversy, dropped the charges.29 Nor would anyone seriously allow a criminal to snag a bargain and commit one crime, get one free. Rather, the
concern is that “[w]hen the government wants to impose exceptionally
harsh punishment on a criminal defendant,” it can “divide crime and
multiply punishment.”30
C. Charge Stacking Worsens Defendants’ Chances
In theory, prosecutors stack charges because it works: multiple
charges significantly increase guilty verdicts.31 Accounting for a host of
variables, empirical legal research has demonstrated that multiple criminal charges significantly raise the odds of a guilty verdict by more than
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
23 Seigel & Slobogin, supra note 10, at 1120 (“Given the breadth and variety of the federal criminal code, it is likely that a defendant’s behavior will potentially violate a multitude of overlapping
criminal statutes . . . .”).
24 Holmes, supra note 12.
25 Crespo, supra note 16, at 1313.
26 Stacy M. Brown, Petition Seeks to End Practice of Charge Stacking, L.A. SENTINEL (Feb. 28,
2019), https://lasentinel.net/petition-seeks-to-end-practice-of-charge-stacking.html [https://perma.cc/
Q8H9-XS28].
27 Bill Pursell, Charge Stacking: Gambling with People’s Lives, SEEKING JUST. FOR
INNOCENT (Jan. 13, 2014, 1:17 PM), http://www.seekingjusticefortheinnocent.com/index.php/
featured-journalists/bill-pursell/545-bill-stackingcharges-3 [https://perma.cc/V6YG-2VV5].
28 William J. Stuntz, The Pathological Politics of Criminal Law, 100 MICH. L. REV. 505, 511
(2001).
29 Holmes, supra note 12.
30 Stinneford, supra note 1, at 1955–56.
31 See Andrew D. Leipold & Hossein A. Abbasi, The Impact of Joinder and Severance on Federal
Criminal Cases: An Empirical Study, 59 VAND. L. REV. 349, 368 tbl.U (2006).

1394

HARVARD LAW REVIEW

[Vol. 136:1390

10%.32 The effect increases with the number of charges,33 and the
weaker the government’s case, the stronger the effect multiple charges
have.34 The effect multiple offenses have on defendants begins before
trial and before plea bargaining in some jurisdictions where “each additional charge,” within the discretion of the prosecutor, brings “a commensurate bond obligation, meaning that defendants are more likely to
be sitting in jail pre-trial and unable to help their defense attorney.”35
This, too, could potentially raise rates of guilty pleas and verdicts.
Commonsense theories have considered why multiple charges lead to
these outcomes. The greater the number of counts, the greater the jury’s
suspicion of criminality.36 Further, counts that may be considered weak
“may assume greater authority.”37 If a defendant arrives at trial with a
dozen counts in tow, the jury may judge the case to be especially serious,
worthy of punishment in and of itself. Jurors may see the evidence as
cumulative even for the separate crimes and convict even “when [they]
would not convict him of either if [they] could keep the evidence
properly segregated.”38
Imagine a piece of evidence admitted into trial for a robbery count
alone but not admitted for the trespassing component. Separating the
issues may be difficult for juries to do. A defendant may also suffer
special difficulty when “he desires to assert his privilege against selfincrimination with respect to one crime but not the other.”39 It hardly
helps the defendant’s aura of innocence in a lay juror’s eyes when the
defendant pleads the Fifth on robbery but not trespassing, or on bank
fraud but not wire fraud. Jurors may compromise to meet in the middle
in the deliberation room by finding the defendant guilty on some but
not all charges;40 jurors also become more likely to confuse and combine
evidence from separate charges in a single trial;41 and “proof that the
defen-dant is guilty of one offense may be used to convict him of a second offense, even though such proof would be inadmissible in a second
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
32 Id. at 383–84 (accounting for variables such as bench or jury trial, crime severity, public versus private representation, and federal circuit).
33 Id. at 368 fig.1.
34 James Farrin, Note, Rethinking Criminal Joinder: An Analysis of the Empirical Research and
Its Implications for Justice, 52 LAW & CONTEMP. PROBS. 325, 331 (1989) (citing empirical social
psychology research to note that “the joinder effect [is] greater when the cases are weak”).
35 Holmes, supra note 12.
36 See United States v. Foutz, 540 F.2d 733, 739 (1976) (“[I]t is possible that the jury found him
guilty of that crime under the rationale that with so much smoke there must be fire.”); Farrin, supra
note 34, at 330 (citing social psychology research to note that “people infer that a person with one
negative trait has other negative traits as well”).
37 Milton J. Hernandez, IV, Missing the Misjoinder Mark: Improving Criminal Joinder of
Offenses in Capital-Sentencing Jurisdictions, 111 J. CRIM. L. & CRIMINOLOGY 651, 681 & n.183
(2021) (quoting GARY S. KATZMANN, INSIDE THE CRIMINAL PROCESS 193 (1990)).
38 Foutz, 540 F.2d at 736.
39 Id.
40 Seigel & Slobogin, supra note 10, at 1125.
41 Farrin, supra note 34, at 328.

2023]

STACKED

1395

trial for the second offense.”42 A particularly trusting attorney may have
faith in the jury’s wisdom to consider each count’s evidence separately
through a jury instruction, but — really — “all practicing lawyers know
[that] to be unmitigated fiction.”43
Criminal justice professionals, commentators, and academics recognize these effects and bemoan charge stacking in the United States as
pervasive and rampant.44 The American Bar Association once warned
prosecutors against “‘piling on’ charges in order to unduly leverage an
accused to forgo his or her right to trial.”45 Now, criticism has intensified from broader constituencies: charge stacking has been listed among
the American prosecutor’s “fearsome array of tools . . . to extract confessions and discourage people from exercising their right to a jury
trial.”46
D. The Common Understanding Is Incomplete
This understanding of charge stacking, often anecdotal, is incomplete. Its criticisms do not distinguish between the criminal justice systems of the states and the federal government. But charging multiple
offenses is not uniform across the United States.47 Data show that
charging multiple offenses does not occur nearly as often in the federal
justice system as common understandings suggest.48 However, early
data do provide evidence consistent with charging multiple offenses being more common in at least some states.49 Perceptions of prejudice to
defendants, on the other hand, find support in the data. Federal criminal charging data show that the more charges filed, the more likely the
defendant loses at trial.50 Again, too, early state data suggest that not
only does charging multiple offenses occur more often in some states; it
also correlates with worse outcomes for criminal defendants.51
In the past, despite analysis of charge stacking and concerns from
criminal justice activists, much literature either focused on multiple
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
42 Joinder and Severance of Offenses, 44 GEO. L.J. ANN. REV. CRIM. PROC. 361, 364 & n.987
(2015) (citing cases).
43 Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson, J., concurring).
44 See, e.g., sources cited supra note 16.
45 JAMES G. EXUM, JR., ET AL., A.B.A. CRIM. JUST. STANDARDS COMM., ABA STANDARDS
FOR CRIMINAL JUSTICE: PROSECUTION FUNCTION AND DEFENSE FUNCTION 77 (3d ed.
1993).
46 Clark Neily, Commentary, Prisons Are Packed Because Prosecutors Are Coercing Plea Deals.
And, Yes, It’s Totally Legal, CATO INST. (Aug. 8, 2019), https://www.cato.org/commentary/
prisons-are-packed-because-prosecutors-are-coercing-plea-deals-yes-its-totally-legal [https://perma.cc/
S25T-PX9N].
47 Compare, e.g., infra Figure 1, p. 1400, with infra Figure 3, p. 1404.
48 See infra Figure 1, p. 1400.
49 See infra Figure 3, p. 1404.
50 See infra Figure 2, p. 1402.
51 See infra Figures 2, p. 1402, and 4, p. 1405.

1396

HARVARD LAW REVIEW

[Vol. 136:1390

charges at the jury-trial level in the abstract,52 or focused exclusively on
the federal level.53 This scholarship mostly comes from the 1980s to the
early 2000s.54 Rarely do analyses extend beyond anecdotal accounts.55
Those that do focus on the history of charge stacking before the twentieth century.56
Updated empirical data on charge stacking can help provide clarity
to story-driven advocacy. Criminal justice policy often suffers from a
degree of anecdotalism that prevents targeted reforms from producing
movement on criminal justice issues.57 The problem with “sound-bite,
story-driven” approaches to reform is that “our system is not just the sum
of the stories that you hear about.”58 These approaches prevent the “public and politicians” from seeing “the sweep of the criminal law and the
criminal system,” causing them to fail to “focus on the details or analyze
how limited pools of money should be spent.”59 To determine whether
advocates should pursue reducing the effects of charge stacking, one must
first understand how often charging multiple offenses occurs, where it occurs, and if there are associated effects on defendants’ outcomes. This
analysis will focus on the details beyond “story versus story.”60 At the very
least, a clearer picture clarifies the environment of debate.
I. METHODOLOGY†
A. Datasets
Few institutions can track all charges in any criminal justice system — state or federal — much less charges in both systems.61 The federal and state criminal justice systems are so huge and make available
such little comprehensive data that legal researchers struggle to compare
numbers between them.62
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
52 See Farrin, supra note 34, at 327–28 (“Seven published studies have tested mock jurors’ reactions to a trial where criminal offenses are joined.” Id. at 327 (emphasis added)).
53 See Crespo, supra note 16, at 1310 n.21 (noting scholarly authority criticizing “the legal academy’s . . . obsessive focus on federal law” (citation omitted)).
54 See, e.g., Seigel & Slobogin, supra note 10 (2005); Farrin, supra note 34 (1989).
55 See, e.g., Seigel & Slobogin, supra note 10, at 1108–09 (relying on Martha Stewart’s case to
call for a law limiting counts).
56 See, e.g., Stinneford, supra note 1, at 1958.
57 See Rachel E. Barkow, Criminal Law as Regulation, 8 N.Y.U. J.L. & LIBERTY 316, 323
(2014).
58 Id.
59 Id.
60 Id. at 319.
† The Harvard Law Review has not independently reviewed the data and analyses described
herein. The code used for these analyses is on file with the Harvard Law School library. The
author is grateful for the assistance of Federal Southern District of Indiana Judge Jane MagnusStinson. All errors are the author’s own.
61 See MEASURES FOR JUST., THE POWER AND PROBLEM OF CRIMINAL JUSTICE DATA:
A TWENTY-STATE REVIEW 2–3 (2021), https://www.measuresforjustice.org/services/the-powerand-problem-of-criminal-justice-data [https://perma.cc/98PE-H834].
62 See id.

2023]

STACKED

1397

This Note makes progress on dissolving these practical barriers. Its
analysis primarily relies on two nationwide aggregators of criminal
defendant data: Syracuse University’s Transactional Records Access
Clearinghouse (TRAC) and Measures for Justice.63 TRAC provides federal criminal defendant data.64 TRAC data show defendants’ ultimate
outcome in the federal justice system — guilty plea, trial conviction, dismissal, or otherwise.65 The federal dataset covers every federal criminal
charge filed since at least 2004.66 At the state level, this Note uses data
from Measures for Justice.67 Measures for Justice has agreements with
state judicial systems to provide similarly comprehensive lists of charges
filed for state defendants.68 This Note will use the state dataset to show
charging data from Arkansas, Florida, Pennsylvania, and Tennessee
from 2009 to 2013.
Neither of these datasets is widely available. Outside of federal government sources, TRAC is among the few sources of comprehensive federal charging data. Prior to Measures for Justice’s partnerships in many
states, the data did not exist at all, locked away in cold electronic storage
or even paper records.69 At the time of writing, neither TRAC nor
Measures for Justice has released charge-stacking data publicly on their
platforms.70 Drawing on the unique contributions of these sources, this
Note performs the first-ever quantitative comparison of charge stacking
across the state and federal levels.
B. Federal Methodology
At any given time in the criminal justice process, there will be a
number representing the highest number of charges that a criminal defendant will ever get. Identifying that moment in time, however, can be
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
63 About Us, MEASURES FOR JUST., https://measuresforjustice.org/about [https://perma.cc/
9TMD-NLKK]. The author is grateful for the contribution and calculations provided by Dr.
Sema Taheri, Measures for Justice’s Director of Research and Strategic Initiatives. Sema Taheri,
MEASURES FOR JUST., https://measuresforjustice.org/about/staff?person=sema-taheri [https://
perma.cc/2DF9-4GQP].
64 About Us, SYRACUSE UNIV.: TRAC, https://trac.syr.edu/aboutTRACgeneral.html
[https://perma.cc/AD6T-R5BN]. The Transactional Records Access Clearinghouse (TRAC)
regularly uses the Freedom of Information Act to request charging records kept internally at
the Department of Justice. See TRAC FOIA Activities, SYRACUSE UNIV.: TRAC, https://
trac.syr.edu/foia [https://perma.cc/KFY6-CKKS].
65 See, e.g., Criminal Enforcement, SYRACUSE UNIV.: TRAC, https://tracfed.syr.edu/index/
index.php?layer=cri [https://perma.cc/4ACE-RYBR].
66 This appears in the data. The author is grateful for access to this data from TRAC and to
Dr. Susan Long for supporting this project.
67 About Us, supra note 63.
68 Zoom Interview with Dr. Sema Taheri, Dir. of Rsch. & Strategic Initiatives, Measures for Just.
(Apr. 27, 2021).
69 MEASURES FOR JUST., supra note 61, at 3.
70 See About the Law, SYRACUSE UNIV.: TRAC, https://trac.syr.edu/laws [https://perma.cc/
6YUG-T28J] (showing criminal prosecutions by authorizing statute but not by number of charges);
Data Portal, MEASURES FOR JUST., https://measuresforjustice.org/portal [https://perma.cc/JM7R5FSN] (not yet including criminal defendant outcomes by number of charges).

1398

HARVARD LAW REVIEW

[Vol. 136:1390

challenging. That is because prosecutors can charge a criminal defendant multiple times in a long-running investigation. The charges can
come from a variety of charging instruments: Prosecutors may issue a
criminal complaint with some number of charges.71 Or they could support that complaint with an “information” approved by a judge or if
pleaded to by a defendant.72 A prosecutor may also be legally obligated
in felony cases to charge via grand jury indictment.73 This means that
in a criminal investigation, depending on the timing, a criminal defendant can have one or many charges for different offenses coming from
different kinds of charging documents. It is also possible for a prosecutor to use multiple charging documents to charge a defendant using the
same number of charges.
This Note sifts through millions of charges to identify that maximum
number. Consider a criminal defendant charged by complaint with
three offenses, then charged by information with two offenses, and finally by indictment with two other offenses — albeit an unlikely case.
This Note isolates the exact defendant in each case and then identifies
the maximum number of charges a defendant would receive earliest on
in the criminal justice process.74 This hypothetical defendant would
count as having three charges, notwithstanding her prosecutor’s later
marshalling charging instruments against her. Choosing the maximum
number of charges in this way pinpoints the moment when commentators describe leverage against the defendant as highest due to charge
stacking.75 The earliest, largest number of charges reflects chargenumber-related pressure that the defendant initially faces.76
C. State Methodology
While TRAC files FOIA requests to the federal government on a
rolling basis, Measures for Justice engages in partnerships with many
states. Measures for Justice standardizes the data among states and
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
FED. R. CRIM. P. 3.
Id. 7.
Id.; U.S. CONST. amend. V.
This part of the Note’s analysis relies on computer code that selects TRAC’s unique identifier
for each criminal case, identifies the unique criminal defendant by his unique identifier within that
case, and counts the number of rows (understood as charges) belonging to that case and defendant
for each charging instrument, which is identified by the instrument filing date. From this count of
charges, the code selects the charging instrument with the largest number. Wherever there is a
missing instrument filing date, the code approximates using its disposition date, which is when the
charge was resolved in some way. Wherever there are rows indicating a sealed case, this analysis
considers them actual charges, assuming a minimal chance the sealed rows are not all charges.
75 See Crespo, supra note 16, at 1313 n.31, and sources cited therein.
76 This Note’s approach is not the only one possible. One approach could consider the defendant
having seven charges instead, a cumulative number. This Note avoids creating that metric because
each charging instrument replaces the last. The latest final number of offenses does not best reflect
charge stacking’s power either. It would not capture when a prosecutor begins with many charges,
creates pressure, and then convinces the defendant to plead guilty to fewer charges. See id. at 1313
n.31.
71
72
73
74

2023]

STACKED

1399

centralizes them for the public’s review.77 This analysis is normally
unavailable to the public. At the request of this Note’s author, Measures
for Justice has charitably calculated charges and charge stacking
custom-made for this project.
Unlike the national dataset, the state dataset identifies the number
of charges by criminal cases, not criminal defendants. This means “all
charges associated with the same individual defendant that were filed
in court . . . on the same date.”78 So, compared to the federal data,
which identify a single criminal defendant’s fate across a single criminal
case, there is some risk that this will distort the true number of criminal
charges a state-level defendant faces. But the data assume that “when
a prosecutor files multiple charges together, even when they stem from
separate incidents, they intend to resolve these charges simultaneously.”79 Ideally, then, the distortion will be minimal. This Note
treats the federal and state measures comparably and recognizes they
are not a perfect match.80
D. Charge Stacking Definition
Because charge stacking normatively happens when charges exceed
what the defendant deserves, opinions differ on what number of charges
constitutes a “stack.”81 Most people would probably consider 170
charges for trespassing goats patently absurd. In contrast, most people
probably could justify multiple charges for mass murder. Between these
extremes, charge “stacking,” like a “trial penalty” versus a “plea discount,” is a matter of perspective.82 Importantly, the data alone cannot
define what charge “stacking” is. However, they can provide context for
that inquiry. Charge stacking, at minimum, requires more than one
charge. The greater the number of charges, the more likely one will find
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
77 MEASURES FOR JUST., THE MEASURES FOR JUSTICE METHODOLOGY 4 (2020),
https://measuresforjustice.org/about/docs/MFJ_Methodology.pdf [https://perma.cc/B5WE-STMC].
78 Email from Dr. Sema Taheri, Dir. Rsch. & Strategic Initiatives, Measures for Just., to author
(Jan. 18, 2022, 01:54 ET) (on file with the Harvard Law School Library).
79 Id.
80 The states’ data are comparable but also not exact matches: Tennessee data include only cases
with at least one felony charge. Arkansas data “are from the Arkansas State Administrative Office
of the Courts and include only data from the circuit court, not from the lower district court. Similar
to Tennessee, this means that the data are consistent and usable in the state, but will involve more
serious offenses.” Id. “Pennsylvania data include Philadelphia court data,” which are “structured . . . somewhat differently than the rest of the state” into two tiers. Id.
81 Compare EXUM ET AL., supra note 45, at 77 (“A defendant accused of breaking and entering,
robbery, rape, and murder committed in a single course of conduct involving one victim can hardly
complain of ‘overcharging’ if there is evidence of conduct supporting each charge.”), with id. (A
prosecutor ought not to “‘pil[e] on’ charges in order to unduly leverage an accused to forgo his or
her right to trial.”). For examples of state rules on adding charges, see infra notes 94–100 and
accompanying text.
82 See Ben Grunwald, Distinguishing Plea Discounts and Trial Penalties, 37 GA. ST. U. L. REV.
261, 261 (2021) (“One camp of scholars believes this plea-trial differential represents a deeply troubling and coercive penalty; a second believes it’s merely a freedom-enhancing discount; and a third
denies any meaningful distinction between the two at all.”).

1400

[Vol. 136:1390

HARVARD LAW REVIEW

charge stacking. Limits to data notwithstanding, this Note provides all
the results so the reader can make her own conclusions.
II. CHARGING DATA
A. Federal
For the federal analysis, this Note begins with the number of charges
per defendant from 2004 to 2019. The data show that the majority of
criminal defendants receive one charge; the minority, two or more. This
Note then moves on to show that more charges correlate with higher
conviction rates at trial.
1. Number of Charges per Defendant. — Between 2004 and 2019,
the federal government prosecuted nearly 500,000 criminal cases, over
2.5 million defendants, and 6.85 million charges. Figure 1 shows that
more often than not, prosecutors charged criminal defendants with only
one charge.
Figure 1: Maximum Federal Criminal Charges
per Defendant, 2004–2019
2,000,000

Number of Defendants

66%

1,600,000
1,200,000
800,000
18%

400,000
6%

3%

7%

0
1

2
3
Number of Charges

4

5+

Figure 1 counts the maximum number of federal charges per criminal defendant from 2004 to 201983 and includes felonies, misdemeanors,
and petty offenses. It also does not discriminate between whether a case
pleaded out, went to trial, or was dismissed.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
83 Many criminal defendants are repeat players in the criminal justice system. These analyses
label as a “defendant” any federal defendant who appears in a criminal case even if one defendant
appears more than once. For example, if one criminal defendant is prosecuted twice, that defendant
counts as two defendants for the purposes of the analyses. Consequently, Figure 1 represents more
defendants than actual individuals.

2023]

STACKED

1401

Most of the time, far from charging multiple crimes, federal prosecutors charged defendants with just a single offense (66%). Two charges
are in distant second (18%). Both scenarios combined represent over
two million prosecutions for a sixteen-year period. Three, four, and five
or more charges comprise a minority of defendants’ cases (16%).
It is unlikely that these numbers reflect prosecutors severing criminal
cases into multiple charges for multiple trials. The Federal Rules of
Criminal Procedure permit either party to motion the court to sever
charges when unfairly prejudicial against the defendant,84 yet the data
show little indication of this occurring. The federal data stopped tracking severance in the 1990s.85 The lack of federal data on severing
charges likely does not indicate that literally no charges were split. Even
before the data stopped tracking severance, between 1981 and 1997, the
data show that charges were severed only 673 times. Instead, it more
likely reflects that severing charges occurs so infrequently that tracking
it internally at the federal level is not useful and thus is not represented
in the data.
This analysis identifies the highest number of charges prosecutors
brought against a criminal defendant. If the results show one charge,
that is the largest number of charges a defendant received. But Figure
1 does not capture threats made by prosecutors off the record to charge
more offenses if the defendant did not plead guilty early on.86
2. Number of Charges Versus Trial Convictions. — Figure 2 shows
that more charges correlate with more criminal convictions at trial.87
The conviction rate is 82% at one charge; for defendants tried for five
counts or more, the conviction rate is 91%, almost 10 percentage points
higher.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
FED. R. CRIM. P. 14.
The TRAC criminal charge database shows that the Department of Justice tracks instances
of severing charges through the codes “SEVD” and “SEVM,” representing severance in district
and magistrate courts. See Disposition Reason, SYRACUSE UNIV.: TRAC, https://trac.syr.edu/
documents/DD_AppendixF.html [https://perma.cc/GN48-N6J3]. Searching these terms over the
time period between 2004 and 2019 does not result in data matching these descriptions.
86 See Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463,
2517–18 (2004).
87 Conviction rate means: among those defendants who went to trial, the percentage of them
who were convicted on at least one charge.
84
85

1402

[Vol. 136:1390

HARVARD LAW REVIEW

Figure 2: Trial Conviction Rate by Number of Charges
for All Defendants, 2004–2019
100%
82%

85%

89%

90%

91%

4

5+

Trial Conviction Rate

80%

60%

40%

20%

0%
1

2
3
Number of Charges

The relationship between the number of charges and guilty-plea
rates is difficult to discern. The guilty-plea rate is extremely high; no
matter the number of charges, the conviction rate is nearly 100%.88 A
comparison among such a uniform sample is not meaningful. Figure 2
makes clear that among those who go to trial, the number of charges
correlates with higher conviction rates.
B. States
Having examined the data on potential charge stacking in the federal
government, this Note now turns toward the states. Although much
criminal justice literature focuses on the federal system exclusively, it
does so at its own peril.89 At least one statistic identifies that “about 87
percent of all prisoners are held in state systems,”90 such a large number
that “if [the federal government] freed every single federal prisoner in

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
88 See Missouri v. Frye, 566 U.S. 134, 143 (2012) (“Ninety-seven percent of federal convictions
and ninety-four percent of state convictions are the result of guilty pleas.” (citing UNIV. AT
ALBANY, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE tbl.5.22.2009,
https://www.albany.edu/sourcebook/pdf/t5222009.pdf [https://perma.cc/GT73-8XQW])); see also
Lafler v. Cooper, 566 U.S. 156, 170 (2012) (declaring that the American justice system is “a system
of pleas, not a system of trials”). But see Crespo, supra note 16, at 1378 n.223 (noting that the
commonly cited statistics are about convictions, not cases, of which 89% are resolved by guilty
pleas).
89 See Crespo, supra note 16, at 1310 n.21 (noting scholarly authority criticizing “the legal academy’s . . . obsessive focus on federal law”).
90 JOHN PFAFF, LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION — AND HOW
TO ACHIEVE REAL REFORM 13 (2017).

2023]

STACKED

1403

prison today, [the United States] would still have the highest incarceration rate in the world.”91
State criminal justice systems and the federal criminal justice system
have material differences. While the “federal criminal code places
virtually no constraints on redundant charging,”92 many state governments limit the ability to charge defendants with multiple counts.93
Consequently, evaluating how often states charge multiple offenses helps
to examine the practice’s prevalence in the majority of the criminal defendant population.
This section begins with how charge-joinder rules differ between
Arkansas, Pennsylvania, Tennessee, Florida, and the federal government. Then, it demonstrates that the four states charge millions more
offenses, charge stacking or otherwise, than the federal government.
Like the federal data, more charges correlate with worse outcomes for
criminal defendants in the states, including higher rates of conviction
and guilty pleas.
1. Charging Rules in Arkansas, Pennsylvania, Tennessee, and
Florida. — This Note focuses on Arkansas, Pennsylvania, Tennessee,
and Florida because each has slightly different laws on when prosecutors can charge multiple offenses at once. Florida allows combining
charges when offenses arise from the same event or chain of events;94
this includes granting the defendant the qualified ability to motion to
sever remaining charges after she has been tried for only one of them.95
Pennsylvania has a narrower “common-scheme” rule, where multiple
offenses can be charged together only if the evidence of each could be
used in a separate trial and would not confuse the jury, or the offenses
are based on the same transaction.96 Arkansas for some time had the
narrowest rule, a one-charge-per-indictment regime, allowing “an indictment to . . . charge but one (1) offense” with some exceptions for crimes
like robbery, kidnapping, and “[l]arceny of several animals.”97 That
changed in 2005 when Arkansas repealed and replaced it with a similarcharge rule more akin to that in the Federal Rules.98 Tennessee’s rule
on combining charges has a mandatory and a permissive component. In
Tennessee, combining charges is mandatory when the offenses are based
on the same conduct, are within the jurisdiction of a single court, and are
“known to the appropriate prosecuting official at the time of the return of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Id. at 14.
Seigel & Slobogin, supra note 10, at 1121.
See Crespo, supra note 16, at 1331 fig.8 (taxonomizing state constraints on charge stacking);
see also id. at 1318–21 figs.1, 2, 3 & 4 (taxonomizing charge-joinder rules).
94 FLA. R. CRIM. P. 3.151(a).
95 Id. 3.151(c).
96 PA. R. CRIM. P. 582.
97 ARK. CODE. ANN. § 16-85-404 (West 2004) (repealed 2005).
98 ARK. R. CRIM. P. 21.1; see also Crespo, supra note 16, at 1321 n.55 (describing the legislative
history).
91
92
93

1404

[Vol. 136:1390

HARVARD LAW REVIEW

the” charging instrument.99 And combining charges is permissive when
the charges are merely “parts of a common scheme or plan” or “of the
same or similar character.”100
2. Criminal Charges per Defendant in Arkansas, Pennsylvania,
Tennessee, and Florida. — The following analysis shows how many
charges each state government brought per defendant and how often
they did so. It begins with the number of charges per case, proceeds
with comparing the number of charges with the trial conviction rate,
and concludes by comparing the guilty-plea rate with the conviction
rate.
Figure 3: Maximum State Criminal Charges
per Defendant, 2009–2013
1,522,480

90%

70%

41,339

23,359

34,435

65,576

53,992

273,110
118,087

180,670

153,044

122,241

80,479

77,979

507,453

10%

173,348

20%

12,335

30%

18,212

40%

10,129

50%

31,942

60%
43,741

Percentage of Cases

80%

0%
1

2

3
AR

4 5+ 1

2

3

4 5+ 1

2

FL

3
PA

4 5+ 1

2

3

4 5+

TN

Number of Charges

Figure 3 shows what percent of criminal cases have a certain number
of criminal charges in Arkansas, Florida, Pennsylvania, and Tennessee.
Each bar also indicates the absolute number of cases. In Florida, for
example, the majority of criminal cases have only a single charge (64%,
1,522,480 cases). And in Pennsylvania, the majority of cases have two
charges or more (86%, 724,911 cases).101 These preliminary results suggest that in some states, multiple-offense cases reflect a minority of cases
(Florida), while in others, they reflect a majority (Pennsylvania). States,
ever laboratories of democracy, approach charging multiple offenses differently, producing varied outcomes for criminal defendants in each
state.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
99
100
101

TENN. R. CRIM. P. 8(a)(1).
Id. 8(b).
180, 670 + 153,044 + 118,087 + 273,110 = 724,911 cases.

2023]

1405

STACKED

3. When States Charge Multiple Offenses, Those Charges Accompany
Higher Rates of Conviction. — Figure 4 shows that for the state data,
more charges correlate with a higher rate of guilty verdicts.
Figure 4: Trial Conviction Rate by Number of Charges
for State Defendants, 2009–2013
100%

Trial Conviction Rate

88%

80%

91%

94% 95%

91%
81% 82%

77%

75%
66%

70%

68%
57%

56%

60%
44%

40%
20%
0%
1

2

3
AR

4

5+

1

2

3

4

FL
Number of Charges

5+

1

2

3

4

5+

TN

Figure 4 shows what percentage of trials result in guilty verdicts,
broken out by number of charges.102 As in the federal system, the increasing trend in trial-conviction rates persists at the state level. In
Arkansas, one criminal charge is associated with a 75% trial-conviction
rate, and the conviction rate increases with each additional charge to a
high of 95% for five or more charges. Tennessee cases begin lower, with
57% convicted where the defendant faces a single charge, and end at a
conviction rate of 91% where the defendant faces five or more charges.
Florida begins much lower, starting at 44% convicted with only one
charge, and topping out at 77% convicted for five or more charges — a
rate nearly identical to the trial-conviction rate associated with only one
charge in Arkansas.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
102 Regrettably, Pennsylvania trial data are not reliable enough for presentation. Email from Dr.
Sema Taheri, supra note 78.

1406

[Vol. 136:1390

HARVARD LAW REVIEW

Figure 5: Guilty-Plea Rate by Number of Charges
for State Defendants, 2009–2013
100%
85%
78%

Guilty Plea Rate

80%
65% 66% 63%

60%

58%

69%

72% 74% 73%

69%

81%

68%

61% 62%

59% 61%
53%

52%

47%

40%
20%
0%
1

2

3
AR

4 5+ 1

2

3

4 5+ 1

2

3

FL
PA
Number of Charges

4 5+ 1

2

3

4 5+

TN

Finally, consider Figure 5, which shows the rate of guilty pleas in all
four states, broken out by number of charges.103 With the exception of
Arkansas, the states see a positive correlation between the rate of pleading guilty and the number of charges filed in the case. Florida tapers
off between four and five charges, but the difference is minimal: 74%
for four versus 73% for five or more. For felony cases in Tennessee,
guilty plea rates increase sharply with the number of charges. At one
charge, the guilty plea rate is at 52%; at five or more, the number jumps
to 85%. For most of these examined states, more charges correlate with
a higher rate of guilty pleas. As for Arkansas, misdemeanors might account for its rising and falling curve. Additional data from the State of
Arkansas’s Office of Research and Justice Statistics show that among
criminal defendants charged in circuit court with only misdemeanors,
criminal defendants having multiple charges were, surprisingly, less
likely than those with one charge to plead guilty by 10 to 20 percentage
points every year from 2009 to 2013.104
III. COMPARISON BETWEEN JURISDICTIONS
An initial finding suggests that charge stacking is both more prevalent — and more effective for prosecutors — at the state level than at
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
103 The rate of pleading guilty is determined by what proportion of cases was disposed of by
guilty plea among all possible outcomes, not just convictions.
104 The author is grateful for contribution and calculations from Dr. Scott Graves, Director of
the Office of Research and Justice Statistics of Arkansas. See generally Office of Research and
Justice Statistics, ARK. JUDICIARY, https://www.arcourts.gov/administration/orjs [https://perma.cc/
33XF-BTC6].

2023]

1407

STACKED

the federal level. Federal data from the federal districts encompassing
Arkansas, Florida, Pennsylvania, and Tennessee show that prosecutors
brought fewer than 70,000 criminal cases and a little under 200,000
charges from 2009 to 2013. Table 1 shows that the cases and charges in
each of these states alone rival or greatly exceed how many the federal
government pursued across all these states’ respective federal districts
combined.
Table 1: Number of Cases and Charges
Across Jurisdictions, 2009–2013
JURISDICTION

CASES

CHARGES105

Federal Districts

65,437

196,014

Arkansas

116,359

264,452

2,361,739

3,771,741

Pennsylvania

847,152

2,780,611

Tennessee

218,701

576,996

Florida

Despite the size of the federal government, each state prosecutes a
tremendous number of cases and charges in comparison.106 Arkansas
alone has nearly double the number of cases; Tennessee, over triple;
Pennsylvania, nearly twelve times; and Florida, over thirty-four times
as many cases as the federal government, over two million cases. The
difference in charges is even steeper. The federal government levied
slightly under 200,000 charges between 2009 and 2013, yet the sampled
state with the highest number of cases, Florida, charged over 3.7 million
in that same time period, a gap cosmic in size. The difference in magnitude alone justifies devoting greater attention to charging practices in
the several states.
Table 2 derives summary statistics for these jurisdictions from 2009
to 2013. The federal values in the table come from the corresponding
federal districts for each state.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
105 Federal districts’ number of charges represents this calculation: identify the maximum number of charges per criminal defendant; then, add them together to identify the approximately
200,000 charges. Total number of charges in the states come from multiplying the number of cases
by their corresponding number of charges. Because, however, any number of charges greater than
five was capped at five in the provided data, these numbers underestimate of the true total number
of charges.
106 In our federal system of government, the states retain primary responsibility over criminal
law. See, e.g., Kansas v. Garcia, 140 S. Ct. 791, 806 (2020) (“From the beginning of our country,
criminal law enforcement has been primarily a responsibility of the States . . . .”); Bond v. United
States, 572 U.S. 844, 858 (2014) (“Perhaps the clearest example of traditional state authority is the
punishment of local criminal activity.”).

1408

[Vol. 136:1390

HARVARD LAW REVIEW

Table 2: Mean and Median Number of Charges
per Criminal Case by State and Jurisdiction, 2009–2013
MEAN CHARGES

MEDIAN CHARGES

STATE

FEDERAL

STATE

FEDERAL

Arkansas

2.57

2.88

2

1

Florida

1.43

2.74

1

1

Pennsylvania

5.04

3.43

3

1

Tennessee

3.25

3.47

2

2

The federal government charged on average more charges per case in
each state jurisdiction surveyed — except Pennsylvania. Pennsylvania
charged an average of roughly 50% more offenses per case than the
federal districts of Pennsylvania (5.04 versus 3.43). Of course, averages
suffer from vulnerability to outlier numbers and to unnatural readings
(for example, there is no such thing as 0.43 charges). Additionally, since
states prosecute so many more criminal cases, the large number of onecharge cases can weigh down the average and obscure how multiplecharge cases are represented. A more natural way to examine the
number of charges might be the median, which provides a whole number. Using the median shows that some states charge a median number
of charges multiple times more than the federal government. Florida
and Tennessee have a 1:1 state-to-federal ratio of median charges, but
Arkansas charges twice as many, and Pennsylvania three times as many,
as the median number of federal charges in their respective federal districts. The means and medians combined suggest the following: although the federal government charges more charges per case, states
charge more cases with multiple charges.
The distribution of charges corroborates the summary statistics.
Figure 6 juxtaposes the number of charges per defendant in each state
with the corresponding federal district. For example, the federal bar
values in Figure 6 encompass the federal Eastern District of Arkansas
and the Western District of Arkansas.

2023]

1409

STACKED

Figure 6: Criminal Charges per Defendant,
State versus Federal, 2009–2013
70%

Percent of Cases

60%
50%
40%
■ State

30%

■ Federal

20%
10%
0%

1I~1.1

1• •11
I

~
l1
L
1•~
I

1 2 3 4 5+ 1 2 3 4 5+ 1 2 3 4 5+ 1 2 3 4 5+
AR

FL
PA
Number of Charges

TN

Figure 6 shows that, as a proportion of all cases, Pennsylvania
charges criminal defendants with multiple offenses more than the federal
district equivalent. The same applies to Tennessee and Arkansas, although Arkansas’s five-or-more-charges value is very similar to the federal government’s (11% versus 10%). Florida is an outlier among these
states, because its federal districts, when compared to the state government, do prosecute a larger proportion of cases with multiple offenses.
Finally, Figure 7 juxtaposes state conviction rates with those of their
corresponding federal districts.

1410

[Vol. 136:1390

HARVARD LAW REVIEW

Figure 7: Trial-Conviction Rate by Number of Criminal Charges,
State versus Federal, 2009–2013

Trial-Conviction Rate

100%
80%
60%
■ State

40%

■ Federal

20%
0%
1

2

3
AR

4

5+

1

2

3

4

5+

FL
Number of Charges

1

2

3

4

5+

TN

Figure 7 shows that the rate of state-level criminal convictions increases more sharply the more charges the defendant faces. Compared
to Arkansas’s federal districts, Arkansas’s state-conviction rates start
lower at one charge (75% versus 77%) but end higher, at five or more
charges (95% versus 90%), though the data suggest the federal government won all of its trials against defendants with four charges. Florida’s
state conviction rate does start lower at one charge (44% versus 65%)
but grows more sharply than the conviction rate in Florida’s federal
districts, at five or more charges (33 percentage point increase versus 23
percentage point increase). The same applies to a comparison between
Tennessee and the federal district courts in Tennessee. State law criminal defendants suffer a sharper increase in convictions between one
charge and five or more charges (34 percentage point increase versus 1
percentage point decrease). At five or more charges, Tennessee’s total
conviction rate is even higher than its federal equivalent.
All these comparisons suggest that attention to charge stacking might
be better directed toward the several states because of the sheer number
of criminal defendants affected by state practices of combining criminal
charges. Potential reforms would affect far more people who endure
increased risk of conviction for multiple offenses.
IV. LIMITS TO DATA AND RECOMMENDATIONS
FOR FUTURE STUDY
While this analysis is consistent with charge stacking, it does not
prove it. Due to data-access limits, this Note is not a causal study. This
Note at most shows an association between more charges and more

2023]

STACKED

1411

severe criminal defense outcomes. Further, this analysis alone does not
fully explain the data’s central mystery: If prosecutors prefer to convict
culpable defendants, and more charges correlate with more guilty results, why does the prosecution not always charge multiple offenses?
This is more puzzling considering indictments of any size appear legally
straightforward to obtain.107 The data allow alternative explanations.
The government might simply levy multiple charges when the defendant is accused of engaging in multiple culpable criminal episodes or
many offenses to cover each aspect of a uniquely strong case — in other
words, the government might seek the “fair” amount of charges. Or,
perhaps, the length of sentence for a few charges is so high that more
charges are simply unnecessary. Alternatively, the defendants could be
threatened with more charges unless they plead guilty — and hence they
do — so charges never appear in the data. Without directly perusing the
millions of indictments, informations, and complaints initiating each
prosecution in the data, this analysis cannot evaluate how the number of
charges relates to the justness of the case or the prison time the defendants
face. Further empirical study should evaluate alternative explanations.
CONCLUSION
Criminal justice scholars are concerned about charge stacking in the
criminal justice system. The most current data indicate that charging
multiple offenses in the federal system does not occur nearly as often as
public commentary and the trial advantage suggest. Instead, in at least
some states, the state government charges multiple offenses more often
than the federal government does, a practice that correlates with higher
rates of conviction. The association between more charges and higher
conviction rates remains present federally and in the states.
This Note demonstrates that still more research into charge stacking
is needed. Importantly, comprehensive data on how race and gender
interact with the number of charges are missing from both the federal
and state datasets. Nor do the state datasets provide information broken out by type of crime. Likewise, the data do not represent every state
in the country. The public would benefit from a nationwide dataset.
Additional research reflecting more states, more offenses, and more demographic data such as race and gender should further uncover the potential prevalence and causes of charge stacking.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
107 The federal data show that between 2004 and 2019, grand juries returned “no true bill,” that
is, declined to indict, only 896 times, a fraction of a percentage of all cases. Cf. Opinion, Do We
Need Grand Juries?, N.Y. TIMES (Feb. 18, 1985), https://www.nytimes.com/1985/02/18/opinion/dowe-need-grand-juries.html [https://perma.cc/K2PD-5KT3] (quoting the Chief Judge of the New
York Court of Appeals as saying a grand jury would “indict a ham sandwich” if the prosecutor so
wanted); Josh Levin, The Judge Who Coined “Indict a Ham Sandwich” Was Himself Indicted,
SLATE (Nov. 25, 2014, 1:20 PM), https://slate.com/human-interest/2014/11/sol-wachtler-the-judgewho-coined-indict-a-ham-sandwich-was-himself-indicted.html [https://perma.cc/99RB-7SMU].