NCJ Number
19978
Journal
Columbia Law Review Volume: 75 Issue: 1 Dated: (JANUARY 1975) Pages: 130-161
Date Published
1975
Length
32 pages
Annotation
THE RELUCTANCE OF COURTS TO REVIEW PROSECUTORS' DECISIONS NOT TO PROSECUTE IS ANALYZED IN THE CONTEXT OF CURRENT LEGAL AUTHORITY REGARDING JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS.
Abstract
THE AUTHOR CONTENDS THAT ALTHOUGH IT IS NOT AN ACCEPTED LEGAL PRINCIPLE THAT THE PROSECUTOR'S DISCRETION IS REVIEWABLE, BOTH LEGAL AND PUBLIC POLICY ARGUMENTS TO THAT EFFECT CAN AND SHOULD BE MADE. IN EXAMINING BASES FOR JURISDICTION TO REVIEW, THE AUTHOR CONSIDERS SPECIFIC STATUTORY REVIEW PROVISIONS IN THE ENABLING LEGISLATION OF ADMINISTRATIVE AGENCIES, GENERAL STATUTORY REVIEW VIA THE ADMINISTRATIVE PROCEDURES ACT, AND NON-STATUTORY REVIEW AS AUTHORIZED BY 'FEDERAL QUESTION' JURISDICTION AND THE MANDAMUS AND VENUE ACT OF 1962. OF THE THREE, JURISDICTION AUTHORIZED BY THE ADMINISTRATIVE PROCEDURE ACT APPEARS TO BE THE STRONGEST BASIS FOR JUDICIAL REVIEW OF THE PROSECUTOR'S DISCRETION. BARRIERS TO JUDICIAL REVIEW ARE PRESENTED, INCLUDING THE SEPARATION OF POWERS DOCTRINE, INADEQUACY OF RECORDS ON APPEAL IN SHOWING THE PROSECUTOR'S REASONS FOR HIS DECISION, AND THE LEGAL REQUIREMENT THAT TO BE REVIEWABLE, THE DECISIONS MUST BE FORMAL AND FINAL AGENCY RULINGS. POLICY ARGUMENTS AGAINST REVIEW OF DISCRETION, SUCH AS THE NEED FOR PROSECUTORIAL SECRECY, TO DETER POTENTIAL OFFENDERS, TO PROTECT THE ACCUSED, THE LACK OF PROSECUTORIAL RESOURCES, AND ADMINISTRATIVE EFFECTIVENESS ARE ALSO OFFERED. THE AUTHOR ASSERTS THAT THE LEGAL AND THEORETICAL OBSTACLES TO JUDICIAL REVIEW OF DECISIONS NOT TO PROSECUTE ARE NOT COMPELLING, AND THE TECHNICAL AND POLICY OBSTACLES COULD BE OVERCOME BY IMAGINATIVE COURTS AND LITIGANTS. POLICIES AGAINST THE REVIEW OF PROSECUTORIAL DISCRETION SHOULD BE GIVEN EFFECT WHENEVER THEY APPLY. THEY SHOULD, HOWEVER, CAUSE ONLY A RESTRICTED SCOPE OF REVIEW RATHER THAN AN ABSOLUTE BAR TO JUDICIAL QUESTIONING. THE APPLICABILITY OF THE ADMINISTRATIVE PROCEDURE ACT TO PROSECUTORIAL DECISIONS IN CRIMINAL MATTERS IS ANALYZED IN DETAIL. THE AUTHOR CONCLUDES THAT JUDICIAL REVIEW OF DECISIONS NOT TO PROSECUTE IS JUSTIFIED BY RESORT TO GENERAL PRINCIPLES OF ADMINISTRATIVE LAW, EVEN THOUGH THE COURTS HAVE NOT READILY SEIZED THE OPPORUNITY TO SCRUTINIZE THE EXERCISE OF PROSECUTORIAL DISCRETION. HE CONCEDES THAT AS A PRACTICAL MATTER, IT IS MORE DIFFICULT TO SECURE REVIEW OF FAILURE TO INSTITUTE CRIMINAL PROSECUTIONS THAN TO OBTAIN ENFORCEMENT OF CIVIL LAWS, AND THAT IN ALL LIKELIHOOD, COURTS WILL CONTINUE TO VIEW WITH HOSTILITY REQUESTS FOR REVIEW IN RELATION TO CRIMINAL MATTERS.