NCJ Number
47281
Journal
AMERICAN UNIVERSITY LAW REVEW Volume: 26 Issue: 4 Dated: (SUMMER 1977) Pages: 799-835
Date Published
1977
Length
37 pages
Annotation
ISSUES SURROUNDING INFORMAL ACTIONS -- THOSE TAKEN WITHOUT AN EVIDENTIARY HEARING AND FORMAL RECORD -- ARE EXAMINED, AND SUGGESTIONS REGARDING THE SCOPE OF REFORM ARE OFFERED.
Abstract
THREE ISSUES ARE DISCUSSED: THE NEED FOR RULES AND REGULATIONS; DISCRETIONARY LAW ENFORCEMENT; AND THE TYPE OF HEARING THAT SHOULD PRECEDE INFORMAL ADJUDICATION. IT IS NOTED THAT, ALTHOUGH MANY AGENCIES HAVE NOT COMPLIED WITH THE ADMINISTRATIVE PROCEDURE ACT'S REQUIREMENTS REGARDING THE ISSUANCE OF RULES, FLEXIBILITY IN DECISIONMAKING SHOULD NOT BE STIFLED WITH TOO MANY RULES. CONFIDENCE IS EXPRESSED IN THE COMMON SENSE OF ADMINISTRATORS, AND IT IS SUGGESTED THAT REFORMS OF OBSOLETE CRIMINAL STATUTES ARE PREFERABLE TO DEPRIVING POLICE AND PROSECUTING ATTORNEYS OF ALL DISCRETION REGARDING THE DECISIONS TO ARREST AND PROSECUTE. IT IS POINTED OUT THAT THE REQUIREMENT OF A WRITTEN EXPLANATION FOR A DECISION CAN HELP TOWARD ELIMINATING ABUSE OF DISCRETION. IT IS FURTHER NOTED THAT ELABORATE HEARING REQUIREMENTS DO NOT NECESSARILY SOLVE PROBLEMS INVOLVING INFORMAL AGENCY ACTIONS, AND THAT THE INNOVATIVE USE OF CONFERENCES, AUDITS, AND NONADVERSARY HEARINGS CAN INSURE FAIRNESS WITHOUT MAKING PROCEDURES EXCESSIVELY COSTLY AND TIME CONSUMING. GUIDELINES FOR IMPROVING INFORMAL AGENCY ACTIONS IN FEDERAL GOVERNMENT ARE OFFERED. PARTICIPATION BY THE GENERAL ACCOUNTING OFFICE, CONGRESS, THE PRACTICING BAR, THE COURTS, THE PRESS, AND THE ADMINISTRATIVE CONFERENCE IS URGED. THE ESTABLISHMENT OF OMBUDSMAN OR INSPECTOR GENERAL WITHIN EACH GOVERNMENT AGENCY OR DEPARTMENT (AS OPPOSED TO A GOVERNMENTWIDE OMBUDSMAN PROGRAM) IS SUGGESTED. FOR ADDITIONAL DISCUSSION, SEE THE RELATED ARTICLE NCJ-47282. (LKM)