NCJ Number
55397
Journal
American Criminal Law Review Volume: 13 Issue: 3 Dated: (WINTER 1976) Pages: 563-597
Date Published
1976
Length
35 pages
Annotation
THE QUESTION AS TO WHETHER MANDAMUS COULD BE AN APPROPRIATE REMEDY FOR THE ABUSE OF PROSECUTORIAL DISCRETION IS EXAMINED, AND THE REASONS FOR ITS LACK OF SUCCESS TO DATE IN THIS AREA ARE CONSIDERED.
Abstract
MANDAMUS IS A WRIT OR ORDER COMMANDING THE PERFORMANCE OF A PARTICULAR DUTY RESULTING FROM THE OFFICIAL STATION OF THE ONE TO WHOM IT IS DIRECTED. IT IS GENERALLY USED TO CONTROL ACTIONS AND OMISSIONS OF JUDGES AND ADMINISTRATIVE OFFICERS. THERE ARE A LIMITED NUMBER OF OBSTACLES A COURT CAN PUT BEFORE A PETITIONER SEEKING TO MANDAMUS A PROSECUTING OFFICIAL IN ORDER TO COMPEL SUCH OFFICIAL TO PERFORM A DUTY OWED. ONE REQUISITE ELEMENT IS A JURISDICTIONAL BASIS TO HEAR THE QUESTION; ANOTHER IS SUFFICIENT INTEREST OR GRIEVANCE VIS-A-VIS THE PETITIONER SO AS TO GAIN STANDING TO LITIGATE THE QUESTION; NEXT, THE LITIGANT MUST LACK AN ADEQUATE ALTERNATIVE LEGAL REMEDY, THUS REQUIRING THE EXTRAORDINARY REMEDY OF MANDAMUS. FOLLOWING THESE CONSIDERATIONS, A COURT WILL NORMALLY DETERMINE WHETHER ANY INDEPENDENT PROBLEMS EXIST UNDER THE POLITICAL QUESTION DOCTRINE. AT THIS POINT THE COURT CAN STILL DISMISS THE ACTION UPON A DETERMINATION THAT THE ACT SOUGHT TO BE COMPELLED LIES WITHIN THE DISCRETION OF THE PROSECUTING OFFICIAL AND IS NOT A DUTY OWED TO THE PETITIONER. FINALLY, AFTER CONSIDERING THE MERITS OF THE CASE AND FINDING THAT THE PETITIONER IS WITHOUT AN ADEQUATE REMEDY AT LAW, THE COURT MUST DETERMINE WHETHER IT HAS THE ABILITY TO FASHION THE REMEDY REQUESTED WITHOUT INFRINGING ON THE ACTUAL DISCRETIONARY DOMAIN OF THE PROSECUTOR. ONE SUGGESTION TO FACILITATE THE MAINTENANCE OF CONSISTENCY IN THE USE OF PROSECUTORIAL DISCRETION BETWEEN AND WITHIN PROSECUTORS' OFFICES INVOLVES THE FORMULATION OF A PROSECUTORIAL DECISIONMAKING POLICY COVERING THE VARIOUS CLASSES OF CASES AND THE RELEVANT FACTORS OF ENFORCEMENT FOR EACH CLASS OF VIOLATION. IF FOLLOWED, UNIFORMITY OF ENFORCEMENT SHOULD RESULT FROM THE DEVELOPMENT OF SUCH POLICY. FURTHERMORE, WHERE SUCH POLICY WAS NOT FOLLOWED BY THE PROSECUTOR, SUCH A CASE WOULD PARALLEL AN ADMINISTRATIVE AGENCY WHICH FAILED TO FOLLOW ITS OWN PROCEDURES. THIS WOULD CREATE A PRIMA FACIE CASE FOR A MANDAMUS ACTION TO COMPEL A PROSECUTOR TO PROSECUTE. (RCB)