When the Prosecutor Overreaches Fighting Inflated Charges and Overcharging

When Prosecutors Overreach: Fighting Inflated Charges and Overcharging

What does overcharging mean in criminal cases?

Chicago criminal defense attorney David Drwencke, founding partner of DRD Law, explains that overcharging occurs when prosecutors pursue the most serious charge they believe they can justify, even if the facts don’t fully support it. This often means stacking charges or elevating an offense beyond what the evidence warrants.

According to David, prosecutors rely on this tactic to scare defendants into accepting plea deals. For example, they may threaten a decades-long sentence on an attempted murder charge and then “generously” offer to reduce it to a lesser offense. While it appears to be a compromise, the reality is that the higher charge should never have been filed in the first place.

How does probable cause differ from proof beyond a reasonable doubt?

David emphasizes that probable cause—the legal threshold to bring charges—is extremely low. Prosecutors only need minimal evidence to move forward at a preliminary examination or grand jury hearing. As the saying goes, “you can indict a ham sandwich.”

In practice, this means nearly every case at the preliminary stage results in charges being approved, even when the facts are weak. David highlights that what really matters is whether prosecutors can prove their case beyond a reasonable doubt at trial, not simply whether they can meet the low standard of probable cause.

What are common examples of inflated charges?

One of the most frequent ways prosecutors overcharge is by attaching “great bodily harm” to offenses, escalating a simple battery or domestic violence case into an aggravated charge. David notes that in many situations, the alleged injuries—bumps or bruises—don’t actually meet the legal threshold for aggravated harm.

Another common example is attempted murder. David recalls a case from the Skokie courthouse where his client stole liquor from a store, struck a security guard with the bottle, and caused serious injuries. While the act was undeniable, prosecutors charged it as attempted murder. David fought back, showing it was more accurately charged as battery. Through persistent negotiation, he reduced what could have been a 20-year sentence to just five years—most of which the client had already served under electronic monitoring.

What role do judges play in overcharging?

While judges may recognize when charges are inflated, David explains that they have very little power to correct prosecutorial overreach. Judges cannot force prosecutors to amend or dismiss charges. At most, they can provide input during plea discussions or apply subtle pressure to encourage more reasonable resolutions. Ultimately, however, the decision to reduce or drop charges rests entirely with the prosecution.

What should defendants and families know about inflated charges?

David often reminds clients and their families not to panic when they see severe charges listed on a charging document. In Illinois, Class X and Class 1 felonies—the most serious levels—are often filed at the outset, even when the evidence may not support them at trial.

He stresses that while those charges may stand during trial preparation, negotiations can lead to reduced charges. For instance, in one case involving gun possession, a client initially faced a Class X charge carrying 6 to 30 years in prison. After presenting mitigating facts and negotiating with prosecutors, David secured a much lesser charge of simple felon in possession, reducing the potential sentence dramatically.

Why does choosing the right defense attorney matter in overcharging cases?

Prosecutors often file charges based on limited information from police reports and initial investigations. They may technically meet the legal standard for probable cause, but they don’t always have the full picture of a defendant’s background, mitigating circumstances, or all the available evidence.

David points out that defense attorneys earn reputations—prosecutors know which lawyers will pressure their clients to accept unfair plea deals and which will push back and take cases to trial. His approach is always to place the pressure on the state, not the client. If prosecutors overcharge, his stance is clear: “Prove it.”

By challenging inflated charges and being willing to go to trial, David ensures his clients are not coerced into pleading guilty to crimes they did not commit or accepting sentences far harsher than the facts warrant.