NCJ Number
67177
Journal
Washington University Law Quarterly Issue: 1 Dated: (WINTER 1978) Pages: 109-139
Date Published
1978
Length
31 pages
Annotation
THIS ARTICLE ANALYZES THE PROSECUTOR'S ROLE FROM SEVERAL PERSPECTIVES: AS AN ADMINISTRATOR, AS PART OF THE CRIMINAL PROCESS, AS AN AGENT RELATING TO ALL BRANCHES OF GOVERNMENT, AND AS PART OF THE COMMUNITY.
Abstract
THE PROSECUTOR'S ADMINISTRATIVE FUNCTION (THE DECISIONS TO CHARGE AND THE ASSOCIATED PROBLEM OF DISCRETION) REQUIRES THAT THE PROSECUTOR DETERMINE HIS STATUTORY AUTHORITY AND ACT ONLY WHEN CLEARLY EMPOWERED TO DO SO. THE IMPORTANCE OF RULEMAKING AND DISCLOSURE DERIVES FROM THE NEED FOR A COHERENT AND EVENHANDED PROSE PROSECUTORIAL POLICY. THE PROSECUTOR'S OFFICE MUST PROPOSE AND ADOPT RULES THAT ARTICULATE THE OFFICE'S SUBSTANTIVE PRACTICES, THE PERMISSIBLE REASONS FOR DECIDING WHETHER TO PROSECUTE, AND DETAILED PROCEDURES GOVERNING INDIVIDUAL DECISIONS. FOCUSING ON THE PROSECUTOR AS AN INDIVIDUAL DECISIONMAKER INVOLVES ANALYZING THE BIASES AND INTERESTS WHICH ARE VERY COMPLEX AND WHICH AFFECT THE HEART OF THE ENTIRE LEGAL SYSTEM. THE VANTAGE POINT CAN SERVE ONLY AS THE BASIS FOR STUDYING OBVIOUS FORMS OF PERSONAL CONFLICT. IN THE CRIMINAL PROCESS THE PROSECUTOR'S FUNCTION EXTENDS BEYOND THE CHARGING DECISION TO AN INVESTIGATIVE ROLE WHICH CREATES FURTHER IMPLICATIONS FOR THE CRIMINAL PROCESS. THE PROSECUTOR MAKES A SUBSTANTIAL INPUT INTO THE SENTENCING DECISION. THE PROSECUTOR'S CRIMINAL PROCESS ACTIVITIES CAN BE DIVIDED INTO 'CHARGING,' 'MINUS CHARGING,' AND 'PLUS CHARGING.' THIS DIVISION OF PROSECUTORIAL ACTIVITY PERMITS CONSIDERATION OF THE EFFECTS OF THE ACTIVITY ON CRIMINAL PROCESS GOALS: SPECIFIC AND GENERAL DETERRENCE, RETRIBUTION, AND REHABILITATION. BECAUSE THE PROSECUTOR, PERHAPS MORE THAN ANY OTHER INDIVIDUAL IN THE CRIMINAL PROCESS, MAINTAINS A RELATIONSHIP WITH ALL THREE BRANCHES OF GOVERNMENT, QUESTIONS ARISE WITH RESPECT TO THE APPROPRIATE RELATIONSHIP BETWEEN SOURCES OF AUTHORITY AND CONTROL. LASTLY, THE PROSECUTOR MAINTAINS A RELATIONSHIP WITH THE COMMUNITY WHICH REQUIRES THAT HE BE SENSITIVE TO THE MANIFESTATIONS OF COMMUNITY SENTIMENT. IN CONSIDERING THE VALIDITY OF A PROSECUTORIAL DECISION A PERSON MUST CONFRONT MANY ELEMENTS. THE CRIMINAL LAW IS A COMPLEX PROCESS THAT INVOLVES THE INTERSECTION OF MANY SUBSYSTEMS. NOTES ARE PROVIDED. (MFE)