NCJ Number
28213
Journal
American Journal of Comparative Law Volume: 18 Dated: (1970) Pages: 245261
Date Published
1970
Length
17 pages
Annotation
EXAMINATION OF AMERICAN LAW AND PRACTICE RELATING TO THE DECISION NOT TO PROSECUTE AND THE NEGOTIATED PLEA.
Abstract
A DISCUSSION OF THE USE OF PROSECUTORIAL DECISIONS NOT TO PROSECUTE CONSIDERS THE REASONS MOST COMMONLY GIVEN FOR THIS PRACTICE - LEGISLATIVE OVERCRIMINALIZATION, LIMITED AVAILABLE ENFORCEMENT RESOURCES, THE NEED TO INDIVIDUALIZE JUSTICE - AS WELL AS THE MOST COMMON SITUATIONS IN WHICH PROSECUTORS TYPICALLY DECLINE TO PROSECUTE. CONFINING, STRUCTURING, AND CHECKING THE PROSECUTOR'S DISCRETION TO DECIDE WHEN TO PROSECUTE, IN OTHER WORDS, CUTTING BACK UNNECESSARY DISCRETIONARY POWER AND CONTROLLING NECESSARY DISCRETIONARY POWER, ARE IDENTIFIED AS THE MAJOR PROBLEMS CONNECTED WITH THIS PRACTICE. A DISCUSSION OF PRACTICE OF NEGOTIATING PLEAS WITH A DEFENDANT COVERS THE DIFFERENT TYPES OF PLEA BARGAINING (CHARGE REDUCTION, SENTENCE-BARGAINING, AND NON-PROSECUTION OF ALL BUT ONE OF MULTIPLE CHARGES). THE MAJOR PROBLEMS WITH THIS PRACTICE CITED ARE THE POSSIBLE 'CHILLING' EFFECT OF PLEA NEGOTIATIONS ON THE DEFENDANT'S CONSTITUTIONAL RIGHTS AND THE INCONSISTENCY OF THE PROSECUTOR-INDUCED DISPARITY IN DISPOSITION BETWEEN GUILTY PLEA DEFENDANTS AND THOSE WHO GO TO TRIAL.