“Compassionate Undercharging”

The title of this post is the title of this new article authored by Michal Buchhandler-Raphael and available via SSRN. Here is its abstract:

Undercharging, a common prosecutorial tactic, refers to the strategic pursuit of lesser charges than the law permits. While undercharging is primarily used to facilitate plea agreements, prosecutors also bring lesser charges for other reasons — such as to mitigate the harshness of the criminal legal system.  To date, however, undercharging has largely been limited to nonviolent crimes, with prosecutors generally refusing to file reduced charges in murder cases.

This Article calls on prosecutors to adopt bolder practices that extend undercharging to include homicide offenses, including murder. It coins the term “compassionate undercharging” to describe this form of prosecutorial leniency.  The Article argues that prosecutors should refrain from bringing murder charges and instead pursue lesser charges against victimized offenders — defendants who kill their abusers or third parties under coercive pressures from abusive partners—because their actions are directly linked to their experiences of domestic violence, sexual abuse, or commercial sexual exploitation.  Legal literature has largely focused on female survivors of domestic violence who kill their abusers in perceived self-defense, leaving the broader scope of criminal culpability for other victimized offenders underexplored.  This Article centers the often-overlooked experiences of male victims of physical and sexual abuse, as well as abused individuals who kill third parties.

The Article offers three justifications for undercharging in such cases: First, it aligns with the purposes of punishment, second, it fulfills the prosecutor’s role to “seek justice” through proportionate charging decisions, and third, it reflects prosecutors’ legal and ethical obligations to crime victims.

This Article contributes to legal scholarship in three ways.  First, drawing on empirical studies and court decisions that examine the correlation between victimization in domestic settings and offending, it offers a typology of victimized offenders comprising of five common categories.  Second, it demonstrates that undercharging victimized offenders is consistent with existing prosecutorial practices involving charge reductions in other contexts.  Third, it advocates reducing the criminal culpability of victimized offenders rather than merely mitigating their sentences.