NCJ Number
66534
Journal
Journal of Criminal Law and Criminology Volume: 48 Dated: (JANUARY/FEBRUARY 1958) Pages: 531-541
Date Published
1958
Length
11 pages
Annotation
THIS ARTICLE DISCUSSES TWO PROSECUTING ALTERNATIVES WHEN THE LOCAL PROSECUTOR FAILS TO DO HIS JOB: PROSECUTION BY THE STATE ATTORNEY GENERAL AND THE APPOINTMENT OF A SPECIAL PROSECUTOR.
Abstract
ONE POSSIBLE ALTERNATIVE WOULD BE TO CENTRALIZE THE MACHINERY OF LAW ENFORCEMENT AND PROSECUTION BY GIVING THE ATTORNEY GENERAL THE POWER TO SUPERVISE AND SUPERSEDE THE PROSECUTING ATTORNEY. IN ADDITION, THE ATTORNEY GENERAL WOULD BE ABLE TO CONDUCT CRIMINAL PROSECUTIONS AND BE REQUIRED TO EXERCISE THIS AUTHORITY WHENEVER MISCONDUCT IN A PARTICULAR PROSECUTOR'S OFFICE BECAME EVIDENT. THE COURTS POSSESS AN INHERENT POWER TO APPOINT A SPECIAL PROSECUTOR FROM THE ATTORNEYS WHO APPEAR BEFORE THAT COURT, BUT THAT POWER SEEMS TO BE EXERCISED ONLY WHEN THE PROSECUTOR IS MERELY ABSENT OR WHEN THE OFFICE IS VACANT, RATHER THAN WHEN THE PROSECUTOR FAILS OR REFUSES TO PERFORM. A STATUTE SHOULD EXPRESSLY PROVIDE THAT A GROUP OF CITIZENS, AND IN PARTICULAR A GRAND JURY, MAY PETITION THE COURT FOR THE APPOINTMENT OF A SPECIAL PROSECUTOR. THE AUTHORITY OF THIS PROSECUTOR SHOULD BE BROADENED BY HAVING HIM MAKE GENERAL INVESTIGATIONS IN A CERTAIN AREA FOR A GIVEN PERIOD OF TIME. THE ARTICLE CONCLUDES THAT BOTH OF THESE ALTERNTIVES SHOULD BE AVAILABLE IN EACH STATE. IN SOME INSTANCES, THE ATTORNEY GENERAL, WHO NEED NOT FEAR LOCAL PRESSURES, CAN MOST EFFECTIVELY SUPERSEDE A CORRUPT LOCAL PROSECUTOR. IN OTHERS, THE SPECIAL PROSECUTOR, BECAUSE OF HIS KNOWLEDGE OF LOCAL CONDITIONS, WOULD BE THE MOST EFFECTIVE REPLACEMENT. FOOTNOTES ARE INCLUDED. (JLF)