NCJ Number
34052
Journal
American Criminal Law Review Volume: 13 Issue: 3 Dated: (WINTER 1976) Pages: 379-559
Date Published
1976
Length
180 pages
Annotation
COLLECTION OF FOUR ARTICLES WHICH EXAMINE THE MANNER IN WHICH THE PROSECUTOR EMPLOYS HIS DISCRETIONARY POWERS THE LEGAL AND PRACTICAL LIMITATIONS ON THE EXERCISE OF THESE POWERS, AND SUGGESTIONS FOR REFORMS.
Abstract
SEVERAL AUTHORS PARTICULARLY EMPHASIZE THE REMEDIAL POTENTIAL INHERENT IN THE ADOPTION OF DECISIONAL GUIDELINES. THE SYMPOSIUM BEGINS WITH AN ARTICLE WHICH SURVEYS THE LEGAL AND SYSTEMIC RESTRAINTS UPON PROSECUTORIAL ACTIVITY. THE AUTHOR POINTS TO AN EMERGING TREND TOWARD JUDICIAL REVIEW OF THE PROSECUTOR'S DISCRETIONARY DECISIONS AND NOTES THE SIGNIFICANCE OF INFORMAL RESTRAINTS IMPOSED BY SUCH PHENOMENA AS THE INTERACTION BETWEEN THE PROSECUTOR AND OTHER INDIVIDUALS INVOLVED IN THE CRIMINAL JUSTICE SYSTEM. THE ARTICLE SUGGESTS, HOWEVER, THAT INTERNAL DEVELOPMENT OF PUBLIC GUIDELINES AND SYSTEMATIC DISCLOSURE OF THE BASIS FOR DISCRETIONARY DECISIONS WILL SIGNIFICANTLY IMPROVE THE EXERCISE OF PROSECUTORIAL DISCRETION. A SECOND ARTICLE INVESTIGATES THE WAY IN WHICH PROSECUTORS ACTUALLY EXERCISE THEIR DISCRETION BY EXAMINING THE RESPONSES OF BOTH URBAN AND RURAL PROSECUTORS TO TWO HYPOTHETICAL CASES INVOLVING PORPOSED PLEA BARGAINS. THE RESULTS OF THIS STUDY DELINEATE THE NATURE OF THE PROSECUTOR'S DECISIONAL PROCESS, INDICATE THE RELATIVE IMPORTANCE OF THE FACTORS THAT INFLUENCE HIS DECISIONS, AND EXPLORE THE INTERRELATIONSHIP AMONG THOSE FACTORS. THE AUTHORS OF A THIRD ARTICLE UTILIZE THE ADMINISTRATIVE LAW MODEL TO DEVELOP THEIR OWN SYSTEM FOR CONTROLLING PROSECUTORIAL DISCRETION. THEIR REFORM MECHANISM RELIES UPON PUBLISHED GUIDELINES, PROCEDURAL SAFEGUARDS WITHIN THE PROSECUTOR'S OFFICE, INCREASED CENTRALIZATION OF PROSECUTORIAL POWER, AND LIMITED REVIEW OF THE PROSECUTOR'S DISCRETIONARY DECISIONS TO SYSTEMATIZE THE DECISIONAL PROCESS. THE SYMPOSIUM'S FINAL ARTICLE DICUSSES THE MYRIAD FACTORS THAT INFORM THREE KEY PROSECUTORIAL DECISIONS: THE DECISION TO CHARGE AN ALLEGED OFFENDER WITH A SPECIFIC CRIME, THE DECISION TO OFFER PRETRIAL DIVERSION TO A PARTICULAR DEFENDANT, AND THE DECISION TO PLEA BARGAIN. IT OUTLINES A METHODOLOGY WHICH, IF EMPLOYED, WOULD EASE THE REFORM PROCESS. AS A COMPLEMENT TO THE SYMPOSIUM, A STUDENT NOTE ON THE USE OF MANDAMUS TO SECURE JUDICIAL REVIEW OF THE PROSECUTOR'S DISCRETIONARY DECISIONS IS INCLUDED. THIS NOTE EXPLORES THE HISTORICAL DEVELOPMENT BEHIND THE WRIT AND ITS SUCCESSFUL USE AGAINST JUDGES AND SOME EXECUTIVE DEPARTMENT OFFICIALS AND ANALYZES THE UNSUCCESSFUL ATTEMPTS TO USE IT AGAINST PROSECUTORS. AFTER EXAMINING THE HURDLES WHICH EACH SUCH MANDAMUS ACTION WOULD ENCOUNTER, THE NOTE PROPOSES THE DEVELOPMENT OF INTERNAL POLICY GUIDELINES TO MAKE THE REMEDY MORE AVAILABLE. (AUTHOR ABSTRACT) (SNI ABSTRACT)