NCJ Number
55396
Journal
American Criminal Law Review Volume: 13 Issue: 3 Dated: (WINTER 1976) Pages: 507-552
Date Published
1976
Length
46 pages
Annotation
BASIC REFORM COMPONENTS ARE SUGGESTED FOR THE USE OF PROSECUTORIAL DISCRETION IN THE AREAS OF CHARGING A SUSPECT WITH A CRIME, PRETRIAL DIVERSION, AND PLEA BARGAINING.
Abstract
THE AMERICAN PROSECUTOR HAS TRADITIONALLY BEEN ACCORDED BROAD DISCRETION IN FORMULATING HIS CHARGING POLICIES. THE MANNER IN WHICH THIS DISCRETION IS EXERCISED VARIES CONSIDERABLY FROM JURISDICTION TO JURISDICTION THROUGHOUT THE UNITED STATES DUE TO HISTORICAL FACTORS, INDIVIDUAL PREFERENCES, AND THE INHERENT DIFFICULTY OF ADAPTING ONE SYSTEM TO DIFFERING CIRCUMSTANCES. SUGGESTIONS FOR UNIFORMITY WHILE RETAINING DESIRABLE FLEXIBILITY ARE SUGGESTED AND DISCUSSED AS FOLLOWS: THE CLASSIFICATION OF CHARGING DECISIONS, THE DEVELOPMENT OF CHARGING GUIDELINES, THE RECORDING OF REASONS FOR CHARGING DECISIONS, AND THE PUBLICATION OF OFFICE CHARGING POLICIES. OTHER SUGGESTED METHODS FOR CONFINING, STRUCTURING, AND CHECKING CHARGING DISCRETION ARE INPUT AND REVIEW BY NONPROSECUTORIAL GROUPS, INTRAOFFICE REVIEW, REDUCTION IN THE NUMBER OF DECISIONMAKERS, ELIMINATION OF PROSECUTOR-SHOPPING, CHARGING CONFERENCES, AND EVALUATION OF CHARGING POLICIES AND DECISIONS. THE PROSECUTOR ALSO EXERCISES DISCRETION IN HIS DECISION AS WHETHER TO DIVERT AN ACCUSED PERSON TO REHABILITATION PROGRAMS WITHOUT COURT PROCESSING. SUCH DISCRETION MUST BE CAREFULLY GOVERNED BY ELIGIBILITY CRITERIA, THE MATCHING OF DIVERSION SERVICES TO OFFENDER CHARACTERISTICS, AND CONTINUING EVALUATION OF THE COST-EFFECTIVENESS AND IMPACT OF EACH DIVERSION PROGRAM. IN ADDITION, LEGAL ISSUES MUST BE CONFRONTED IN PRETRIAL DIVERSION DECISIONMAKING TO ASSURE THAT AN ACCUSED'S CONSTITUTIONAL RIGHTS ARE NOT VIOLATED. PROGRAM AUSPICES, CRITERIA AND PROCEDURES FOR TERMINATION OF PROGRAM PARTICIPATION DUE TO UNSATIFACTORY PERFORMANCE, THE ROLE OF DEFENSE COUNSEL, AND CONFIDENTIALITY AND EXPUNCTION OF RECORDS ARE ALSO DISCUSSED AS MATTERS THAT SHOULD AFFECT PROSECUTORIAL DECISIONMAKING IN PRETRIAL DIVERSION. STANDARDS THAT SHOULD GOVERN PROSECUTORIAL PLEA BARGAINING ARE DISCUSSED, WITH PARTICULAR ATTENTION TO NONMANIPULATION OF THE DEFENDANT THROUGH THE ELIMINATION OF OVERCHARGING AND THREATENING THE DEFENDANT FOR WISHING TO EXERCISE HIS RIGHTS IN THE PROCESS OF AN ADVERSARIAL TRIAL. (RCB)