NCJ Number
54114
Journal
Syracuse Law Review Volume: 29 Issue: 2 Dated: (SPRING 1978) Pages: 697-738
Date Published
1978
Length
42 pages
Annotation
THE LACK OF EFFECTIVE CHECKS ON A PROSECUTOR'S DECISION NOT TO PROSECUTE AND REASONS WHY A SELECTIVE SCREENING MECHANISM IS NEEDED TO REMEDY THIS INADEQUACY ARE CONSIDERED.
Abstract
A CENTRAL TENET OF THE ARTICLE IS THE UNDESIRABILITY OF A PROSECUTOR'S FREEDOM TO DECIDE UNILATERALLY NOT TO CHARGE A SUSPECT, NOT TO ENFORCE A LAW, OR TO ENFORCE A LAW ONLY PARTIALLY. THE POTENTIAL FOR INCONSISTENT TREATMENT CONSTITUTES THE CENTRAL OBJECTION TO PROSECUTORIAL DISCRETION NOT TO CHARGE. INCONSISTENT TREATMENT, IN ADDITION TO BEING UNFAIR TO DEFENDANTS, IS DETRIMENTAL TO THE PUBLIC INTEREST. UNLESS SCREENING DECISIONS ARE REACHED IN A UNIFORM MANNER, MORE DANGEROUS INDIVIDUALS MAY NOT BE PROSECUTED WHILE LESS DANGEROUS PERSONS MAY BE CHARGED. ANOTHER OBJECTION TO THE DISCRETION AFFORDED TO A PROSECUTOR IN DECIDING WHETHER TO CHARGE IS THAT SUCH DISCRETION BRINGS THE PROSECUTOR INTO FIELDS RESERVED FOR OTHER BRANCHES OF GOVERNMENT. SEVERAL CHARACTERISTICS OF MOST PROSECUTORS' OFFICES LEAD TO THE CONCLUSION THAT DISCRETION ALMOST NECESSARILY INVOLVES INCONSISTENCY AND UNFAIRNESS. MANY OFFICES HAVE NO STANDARDIZED SCREENING POLICIES. DECISIONS IN LARGE OFFICES ARE SOMETIMES MADE BY NUMEROUS ASSISTANTS, AND LARGE CASELOADS PLACE STRONG PRESSURE ON PROSECUTORS TO ACT QUICKLY. POTENTIAL CHECKS ON A PROSECUTOR'S DECISION NOT TO CHARGE HAVE FAILED, INCLUDING RESTRAINTS PERTAINING TO THE LEGISLATURE, THE JUDICIARY, GRAND JURIES, THE ELECTORATE, INDIVIDUALS BRINGING SUITS FOR NONFEASANCE, AND INTERNAL CONTROLS. GIVEN THAT FULL ENFORCEMENT WHERE ALL SUBJECTS ARE CHARGED AND TRIED IS IMPOSSIBLE AND THAT THERE ARE VALID REASONS FOR SELECTIVE ENFORCEMENT, A MECHANISM IS NEEDED WHEREBY POLICIES OF RATIONAL SELECTIVE ENFORCEMENT ARE ADOPTED AND CONSISTENTLY APPLIED. A MECHANISM IS PROPOSED THAT INVOLVES GREATER UNIFORMITY OF TREATMENT, FACILITATING THE WORKING OF THE POLITICAL SYSTEM, REDUCING SEPARATION OF POWERS CONCERNS, ASSUAGING THE FEELINGS OF VICTIMS, ENDING INSIDE KNOWLEDGE BY SOME MEMBERS OF THE DEFENSE BAR, AND PROVIDING GREATER DETERRENCE. DISADVANTAGES OF THE MECHANISM RELATE TO RIGIDITY, DELAY AND EXPENSE, THE DANGER OF PRO FORMA REVIEW, THE RISK OF IMPINGING ON THE PRESUMPTION OF INNOCENCE, AND LOSING THE BENEFITS OF SECRECY. SUPPORTING CASE LAW IS REVIEWED. (DEP)