DISCRETION AND PUBLIC PROSECUTION (FROM SOCIAL PSYCHOLOGY AND DISCRETIONARY LAW, 1979 BY LAWRENCE EDWIN ABT AND IRVING R STUART - SEE NCJ-60144)

• NCJ Number: 60151
• Author(s): L FRIEDMAN
• Date Published: 1979
• Length: 18 pages
• Corporate Author: Van Nostrand Reinhold
• Publication Format: Document
• Language: English
• Country: United States of America

Annotation

THE SCOPE OF PROSECUTORIAL DISCRETION, REASONS FOR SUCH DISCRETION, AND EFFORTS IN THE COURTS TO LIMIT CERTAIN USES OF PROSECUTORIAL DISCRETION ARE DISCUSSED.

Abstract

THE AMERICAN SYSTEM OF JURISPRUDENCE REQUIRES THAT CRUCIAL DECISIONS AT ALL STAGES OF THE LEGAL PROCESS BE MADE BY PUBLIC PROSECUTORS, WITH LITTLE IF ANY SUPERVISION, CONTROL, OR STANDARDS TO GUIDE THEM. REASONS FOR THIS WIDE RANGE OF PROSECUTORIAL DISCRETION INCLUDE THE SEPARATION OF THE EXECUTIVE BRANCH OF GOVERNMENT, IN WHICH THE PROSECUTOR IS AN IMPORTANT ACTOR, FROM ANY OTHER BRANCH OF GOVERNMENT THAT MIGHT EXERT CONTROL OVER THE PROSECUTOR'S DISCRETION; THE MULTIPLICITY OF LAWS THAT APPLY TO SO MANY ASPECTS OF CITIZENS' LIVES WHICH MUST BE PROSECUTED SELECTIVELY TO REFLECT CONTEMPORARY MORAL PRIORITIES; THE LACK OF INSTITUTIONAL CONTROLS OVER PROSECUTORIAL DISCRETION; AND THE NEED TO INDIVIDUALIZE JUSTICE BY ENABLING THE PROSECUTOR TO MAKE DECISIONS ACCORDING TO THE PARTICULAR CIRCUMSTANCES OF EACH CASE. THE PROSECUTORS CAN ABUSE THEIR DISCRETION BY INVESTIGATING PERSONS WHERE THERE IS LITTLE INITIAL EVIDENCE THAT A CRIME HAS BEEN COMMITTED. FURTHER, THEY MAY REFRAIN FROM PROSECUTION EVEN WHEN ABUNDANT EVIDENCE EXISTS THAT A CRIME HAS BEEN COMMITTED. TWO QUALIFICATIONS TO A JUDICIAL HANDS-OFF POLICY REGARDING PROSECUTORIAL DISCRETION ARE IN CASES WHERE PROSECUTION IS CLEARLY BASED ON RACIAL OR CLASS-MOTIVATED GROUNDS OR IF A PROSECUTOR'S ACTIONS ARE BASED UPON VINDICTIVENESS OR INTIMIDATION BECAUSE A DEFENDANT HAS EXERCISED THE CONSTITUTIONAL RIGHT OF APPEAL. IN RECENT YEARS, STATE AND FEDERAL COURTS HAVE BEGUN TO FASHION STANDARDS TO CHECK PROSECUTORIAL DISCRETION AND SET LIMITS TO THE SELECTIVE ENFORCEMENT OF THE LAW. IF A DEFENDANT HAS BEEN SINGLED OUT FOR DISCRIMINATORY PROSECUTION, WHILE OTHER INSTANCES OF SIMILAR LAWBREAKING HAVE NOT BEEN PROSECUTED, THE COURT MAY DISMISS SUCH A CASE. EXAMPLES OF CASES WHERE PROSECUTORIAL DISCRETION HAS BEEN CHALLENGED ARE PRESENTED. FOOTNOTES ARE PROVIDED. (RCB)