PROSECUTORIAL DISCRETION - AN OVERVIEW

• NCJ Number: 55393
• Journal: American Criminal Law Review Volume: 13 Issue: 3 Dated: (WINTER 1978) Pages: 383-434
• Author(s): S J COX
• Date Published: 1976
• Length: 52 pages
• Corporate Author: American Bar Association
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

ISSUES RELATED TO THE SCOPE AND USE OF PROSECUTORIAL DISCRETION ARE DISCUSSED, AND PROTECTIONS FROM ABUSE THAT MAY OCCUR IN THE EXERCISE OF THIS DISCRETION ARE CONSIDERED.

Abstract

THE NATURE OF PROSECUTORIAL DISCRETION, ITS ADVISABILITY, AND NECESSITY ARE CONSIDERED. NUMEROUS COMMENTATORS HAVE RECOGNIZED THE POTENTIAL FOR ABUSE IN THE EXERCISE OF DISCRETION AND POINT TO THE NEED FOR REVIEW OF A PROSECUTOR'S ACTION. THE ADOPTION OF WRITTEN POLICIES TO GOVERN THE EXERCISE OF DISCRETION AND THE RECORDING OF EACH DECISION ARE SUGGESTED BY SOME. EMPHASIS ON INTERNAL CONTROLS TO PREVENT ABUSES IN DISCRIMINATORY DECISIONMAKING IS COMPARED WITH THE POSSIBLE IMPOSITION OF EXTERNAL CONTROLS THROUGH JUDICIAL REVIEW OF PROSECUTORIAL ACTIVITIES. AN ANALYSIS OF THE PREVAILING JUDICIAL THEORY THAT JUDICIAL REVIEW OF A PROSECUTOR'S ACTIVITY IS BEYOND THE REACH OF THE COURTS IS INCLUDED. RECENT JUDICIAL DECISIONS INDICATE AN INCREASED WILLINGNESS ON THE PART OF JUDGES TO IMPOSE LIMITS ON THE PROSECUTOR IN HIS OR HER EXERCISE OF DISCRETION. ALSO ANALYZED IS THE POSSIBILITY OF JUDICIAL REVIEW OF PROSECUTORIAL DECISIONS WHERE THERE HAVE BEEN ALLEGATIONS THAT THE PROSECUTION WAS A VIOLATION OF EQUAL PROTECTION. THE USE OF MANDAMUS TO PREVENT AS WELL AS REQUIRE PROSECUTION IS DISCUSSED. THE INFLUENCES ON THE PROSECUTOR FROM WITHIN THE CRIMINAL JUSTICE SYSTEM, INCLUDING THE GENERAL PROBLEMS OF CASE LOAD, RESOURCE ALLOCATION, PRESSURES OF PUBLIC OPINION, AND THE DESIRE TO WIN, AS WELL AS PROBLEMS SUGGESTED BY THE INTERPERSONAL RELATIONSHIPS BETWEEN THE PROSECUTOR AND THE COURT, POLICE, THE DEFENSE ATTORNEY, AND FELLOW PROSECUTORS ARE EXAMINED. AN ANALYSIS OF THE PROSECUTOR AS A MEMBER OF A COMPLEX SYSTEM SUGGESTS THAT PROSECUTORIAL DISCRETION IS NOT ONLY INEVITABLE BUT DESIRABLE; HOWEVER, ACCOMPANYING THAT EXERCISE OF DISCRETION THERE MUST BE SOME PROTECTIONS TO ENSURE THAT THIS CONSIDERABLE POWER WILL NOT BE ABUSED. (RCB)