TAMING THE DRAGON - AN ADMINISTRATIVE LAW FOR PROSECUTORIAL DECISION MAKING

• NCJ Number: 55395
• Journal: American Criminal Law Review Volume: 13 Issue: 3 Dated: (WINTER 1976) Pages: 473-505
• Author(s): C P BUBANY; F F SKILLERN
• Date Published: 1976
• Length: 33 pages
• Corporate Author: American Bar Association
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

EXISTING FORMAL AND INFORMAL CONTROLS FOR PROSECUTORIAL DISCRETIONARY DECISIONMAKING ARE DISCUSSED AND NEW CONTROLS ARE SUGGESTED.

Abstract

THE PRETRIAL DISCRETIONARY DECISIONMAKING POWERS OF THE PROSECUTOR, PARTICULARLY IN THE MATTERS OF CHARGING PERSONS, PRETRIAL DIVERSION, AND PLEABARGAINING, ARE BROAD AND RELATIVELY UNCHECKED BY ANY OFFICIAL MECHANISM. THE ADVERSARIAL TRIAL ITSELF, WHICH IN FORMER TIMES PROVIDED A FORUM FOR EXPOSING AND REGULATING PROSECUTORIAL HANDLING OF A DEFENDANT, HAS BEEN LARGELY PREEMPTED BY PLEA BARGAINING, WHICH HAS BEEN GIVEN INCONSISTENT JUDICIAL REVIEW AT THE TIME OF FORMAL COURT PROCEEDINGS. WHILE ATTEMPTS HAVE BEEN MADE TO REVIEW AND CONTROL PROSECUTORIAL BEHAVIOR THROUGH THE COURTS BY SEEKING MANDAMUS, THESE EFFORTS HAVE MET WITH LITTLE SUCCESS AS THE COURTS HAVE BEEN RELUCTANT TO TAMPER WITH PROSECUTORIAL DISCRETION. THE CHARACTER AND DIRECTION OF CRIMINAL JUSTICE PROCESSING, THEREFORE, RESTS PRINCIPALLY IN THE DECISIONMAKING POWERS OF THE PROSECUTOR, WHICH GIVES POTENTIAL FOR ABUSE OF A DEFENDANT AND CONTAMINATION OF THE SYSTEM OF JUSTICE. SOME CONTROL OF PROSECUTORIAL DECISIONMAKING IS NECESSARY TO ENSURE THAT THIS CANNOT HAPPEN WITHOUT SOME MEANS OF REDRESS. A PROPOSAL WHICH IS AN AMALGAMATION OF SUGGESTIONS FROM VARIOUS SOURCES, SUCH AS THE AMERICAN LAW INSTITUTE AND THE NATIONAL ADVISORY COMMISSION, CONTEMPLATES A SYSTEM OF CONTROLS OVER PROSECUTORIAL PRETRIAL DECISIONMAKING THROUGH THE FOLLOWING MEANS: (1) PUBLISHED RULES, GUIDELINES, AND POLICIES; (2) ESTABLISHED PROCEDURAL SAFEGUARDS WITHIN THE PROSECUTOR'S OFFICE; (3) INCREASED CENTRALIZATION OF PROSECUTORIAL POWER; AND (4) LIMITED ADMINISTRATIVE AND JUDICIAL REVIEW OF PROSECUTORIAL ACTIONS. THE MENTIONED SUGGESTIONS, WHICH ARE DISCUSSED IN SOME DETAIL, ARE INTENDED TO FORM THE BASIS FOR CHANGE THAT IS GENERALLY FEASIBLE WITHIN THE FRAMEWORK OF THE PRESENT PROSECUTORIAL SYSTEM, WHILE ALLEVIATING SOME OF ITS SHORTCOMINGS. (RCB)