This month marks a year since a scrum of sequined shirts, severed limbs and wild cats introduced us to Tiger King Joseph Maldonado-Passage aka “Joe Exotic” and the epic battle between him and his nemesis, Carole Baskin. We may be re-introduced to them in the fall as rumors abound of a second season of the streaming hit.
Maldonado-Passage remains incarcerated after being convicted of 19 crimes, but he has several post-conviction plans in the works. There’s also a BBC Two documentary brewing that is slated to cover, in part, the folks working to free him.
What the Netflix series brings to light (aside from the dangers of corralling wild cats) is the outrageous prosecutorial practice of charge stacking. Prosecutors used this tactic against Maldonado-Passage — as well as other high-profile defendants — and achieved results that call the integrity of the criminal legal system into question.
The system endows prosecutors with almost unfettered discretion. They choose how to charge someone, where and when and — perhaps most important — how many times they’re charged.
Charge stacking, sometimes known as “charge piling,” is the practice of adding as many charges as possible against a particular defendant, even if it’s all for the same conduct.
The potential sentence length and list become so formidable that the accused usually acquiesces and agrees to a plea arrangement in order to avoid the trial penalty. The defendants who insist on a trial will have that insistence held against them in the form of an enhanced sentence. We call the process a “bargain,” a funny name to call a deal made between one party who has nothing to barter and another with all the power. In other contexts, this would be called extortion.
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In the case of Maldonado-Passage, he was indeed convicted of a horrible crime — murder for hire. But the majority of the 19 charges against him were for selling and killing tigers. Maldonado-Passage was charged multiple times with violating the Lacey Act (which bans wildlife trafficking) and the Endangered Species Act.
Charge stacking is one of the powers ensuring that the government wins. It often provides alternate grounds for conviction, “compromise verdicts” they’re called. Twenty-six years ago, O.J. Simpson’s attorneys fought vociferously to prevent a second-degree murder instruction from reaching the jurors, fearing that the jury might be tempted to cure deficiencies in the state’s case by convicting Simpson of a lesser charge.
Indeed, the fear that the Minneapolis jury will acquit former police officer Derek Chauvin — some have suggested it’s a possibility — justifies the multiple murder and manslaughter charges for people who want Chauvin convicted, not just for accountability but also to prevent the unrest that might follow an acquittal.
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There’s no denying the overwhelming social sentiment that certain defendants like Chauvin, who pinned his knee into the neck of unarmed Black man George Floyd for more than nine minutes, deserve swift and severe punishment. The idiom “throw the book at him” calls for charge stacking, using the whole roster of available statutes against certain people whose actions beg for harsh punishment. But excusing bad practices because they’re used against unpopular people is what allowed this country’s crisis of mass incarceration to develop.
Besides, charge stacking isn’t reserved for the most egregious criminal cases.
The case of Bobby Bostic — a man sentenced to more than 200 years for various counts of robbery, kidnapping and assault committed as a teenager — is probably the most urgent example. Even the judge who imposed Bostic’s sentence admits that she made a grave mistake. She supports Bostic’s bid for clemency, one that awaits a decision by Missouri Gov. Mike Parson.
Cassetti Brown, a Black man in Louisiana sentenced to 165 years in prison for possession with intent to sell and gun possession crimes, is another lesser known case. A jury convicted Brown of six of the eight charges — meaning prosecutors didn’t have enough evidence for all the charges they presented — which was enough to put a 53-year-old man away for more than two lifetimes and foreclose any chance of redemption when no one was physically hurt. He’s convicted of illegally carrying a firearm while unlawfully in possession of a controlled dangerous substance as well as possession of a firearm by a convicted felon, two crimes for the one event of possessing a gun. Those two crimes account for 70 years of his sentence.
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But charge stacking isn’t limited to these sky-high sentences. Over the summer, prosecutors in Portland stacked charges on protesters who engaged in passive resistance by charging them with both interfering with a police officer as well as resisting arrest. The practice concerned Oregon state legislators so much — the victims of charge stacking were disproportionately people of color and the homeless — that they’re discussing whether legislation preventing this type of piling on is warranted.
The good news is solutions to this problem exist.
While charge stacking is constitutional according to the U.S. Supreme Court — its 1932 opinion in Blockburger v. United States authorized the government to try to punish any defendant for multiple crimes for the same event as long as each crime contains an element that the other does not — and doesn’t trigger double jeopardy, it doesn’t prevent state legislatures from passing laws that limit the practice.
Prosecutors can also exercise self-restraint. That’s what the whole “progressive prosecutor” movement is about. In the much-watched Manhattan district attorney race, none of the candidates has spoken out strongly about ending the practice of charge stacking, but each of the eight hopefuls has alluded to the fact that they will limit themselves in the charges they’ll seek, probably because they need to appeal to voters.
Only four states appoint (as opposed to elect) prosecutors, leaving those attorneys with little political pressure to change. If absolute power has corrupted them so absolutely that these offices are unable to evolve, then perhaps those state legislatures need to rethink their criminal legal structures.
While the specifics of these solutions are up for debate, what’s undeniable is that it’s time for prosecutors — and the rest of us — to discuss what makes the criminal legal system as problematic as it is. And then change it.
Of course, changing policies going forward won’t help those prisoners who are currently suffering the effects of charge stacking.
If he doesn’t receive clemency and/or sentence modification, Maldonado-Passage may never get to some of his post-incarceration plans, instead spending the rest of his life behind bars. The same goes for Bostic and Brown. Repairing these past injustices is inevitably a part of charge stacking reform — unless the country is proud of using unfair practices to keep people in cages.
Chandra Bozelko is a syndicated columnist and a 2021 John-Jay Harry Frank Guggenheim Reporting Fellow. Ryan Lo is a producer and consultant in Hollywood and is the founder of UnLabeled Digital Media.