NCJ Number
197691
Journal
International Criminal Justice Review Volume: 12 Dated: 2002 Pages: 22-52
Date Published
2002
Length
31 pages
Annotation
This article documents recent developments in prosecutorial practices in the United States and in three continental law countries (France, Germany, and Italy), comparing the use of prosecutorial discretion in these systems and exploring the possibilities of reforming certain aspects of the American prosecutorial system by referring to the experience of continental law countries.
Abstract
Prosecutorial discretion has been an issue of debate in the United States. American prosecutors' essentially unchecked discretion and their dominance in plea bargaining have long been criticized as inconsistent with the principles of fairness, equity, and accountability on which the system of justice in the United States is based. Despite the concerns raised by commentators, neither legislatures nor courts have taken serious steps to restrain prosecutorial discretion. In debating whether and how prosecutorial discretion should be restrained, reformist commentators have repeatedly turned their attention to continental European countries' practices and experiences. Unlike American prosecutors, who have unlimited power to drop charges before and after they are filed with the court, French prosecutors' broad charging authority is confined to the initial decision about whether to file a charge with the court. Once prosecutors file charges with the examining magistrate or the court, they cannot drop the charges without the approval of the magistrate or the court. This makes it impossible for prosecutors to use overcharging as a means to coerce cooperation from the accused. Also, in France, prosecutorial discretion can be constrained by victims, since there are several means for victims to challenge prosecutors' decision not to prosecute. The appeal of the German prosecutorial system to American law reformers is largely in the principle of compulsory prosecution. As mandated under law, prosecutors must "take action against all prosecutable offenses, to the extent that there is sufficient factual basis." A major exception authorizes prosecutors to refrain from prosecuting any minor offenses on the condition that the accused agrees to pay a sum of money to a charitable organization or to the state. Italy has in the past had a strict approach that requires all cases to be submitted to formal justice processing; however, court backlogs have necessitated the specification of two trial avoidance procedures that allow the imposition of sentences without a full trial. A look at these three continental systems suggests several reforms to reduce coercion within the American system of plea bargaining. These include less severe penalties for crimes, broader pretrial discovery rights, and judicial supervision of plea bargaining. 101 references