FORMULATION OF ENFORCEMENT POLICY - AN ANATOMY OF THE PROSECUTOR'S DISCRETION PRIOR TO ACCUSATION

• NCJ Number: 27626
• Journal: Rutgers Law Review Volume: 11 Issue: 3 Dated: (1957) Pages: 507-525
• Author(s): C C FERGUSON
• Date Published: 1957
• Length: 19 pages
• Corporate Author: Rutgers University
• Publication Format: Article
• Language: English
• Country: United States of America
• Note: *This document is currently unavailable from NCJRS.

Annotation

THE AUTHOR EXAMINES THE WINNE DECISION, IN WHICH THE NEW JERSEY SUPREME COURT PERMITTED CRIMINAL CHARGES OF OFFICIAL MISCONDUCT TO BE BROUGHT AGAINST A PROSECUTOR WHO FAILED TO CHARGE CERTAIN KNOWN CRIMINALS.

Abstract

THE COURT HELD THAT THE STATE NEED NOT PROVE OFFICIAL CORRUPTION TO CONVICT IN THIS CASE. THE AUTHOR SUGGESTS THAT NO ONE WOULD QUESTION THE SOUNDNESS OF THE PRINCIPLE OF APPLYING CRIMINAL LAW SANCTIONS FOR CORRUPT NON-USE OR MISUSE OF PROSECUTING POWER. THE POSSIBILITY OF APPLYING THE CRIME OF MISCONDUCT IN OFFICE WITHOUT THE ELEMENT OF CORRUPTION, HOWEVER, RAISES QUESTIONS OF BASIC FAIRNESS TO A PROSECUTOR IF THIS WOULD PLACE HIM IN THE POSITION OF HAVING TO INSURE THAT THE FULL POWER OF THE STATE TO COMBAT CRIME IS EXERCISED. ULTIMATELY, IT RAISES THE QUESTION OF THE UTILITY OF THE CRIMINAL SANCTION VIS-A-VIS OTHER PROCEDURES TO PROCURE PROSECUTORIAL PERFORMANCE. OBJECTIONS TO CRIMINAL PENALTIES APPEAR TO STEM FROM THE POSSIBILITY OF SUBJECTING THE INCOMPETENT, HONEST, PROSECUTOR TO CRIMINAL PENALTIES. AFTER REVIEWING THE INEFFECTIVENESS OF ALTERNATIVE SANCTIONS, THE AUTHOR INDICATES THAT CRIMINAL PENALTIES NONETHELESS MAY BE JUSTIFIED TO ASSURE PROSECUTION WHEN ENFORCEMENT IS IN THE PUBLIC INTEREST. A MAJOR CRITICISM OF CRIMINAL PUNISHMENT IS THAT EVEN AFTER IT IS APPLIED TO THE OFFENDING PROSECUTOR, THE CRIMINAL ACT IN QUESTION MAY CONTINUE TO GO UNPROSECUTED. WRITS OF MANDAMUS TO COMPEL PROSECUTION AND CIVIL ACTIONS TO SECURE SPECIFIC PROSECUTORIAL PERFORMANCE HAVE BEEN CONSIDERED. HOWEVER, THE PROBLEM OF WHO HAS THE LEGAL RIGHT TO BRING SUIT (STANDING TO SUE) AND TRADITIONAL PROSECUTORIAL INDEPENDENCE, AS WELL AS THE POSSIBILITY THAT PRIVATE VENGENCE MIGHT FIND ITS WAY INTO THE CRIMINAL COURTS, INDICATE THAT BOTH OF THESE ARE INAPPROPRIATE REMEDIES. IN CONCLUSION, IT IS SUGGESTED THAT PERHAPS THE MOST EFFECTIVE AND LEAST DISRUPTIVE REMEDY FOR NON-CORRUPT PROSECUTORIAL INACTION MAY VERY WELL BE ENTRY AND CONTROL OF THE PROSECUTION BY THE ATTORNEY GENERAL. (AUTHOR ABSTRACT MODIFIED)