CRIMINALITY, PROSECUTORIAL SCREENING, AND UNCERTAINTY: TOWARD A THEORY OF DISCRETIONARY DECISION MAKING IN FELONY CASE PROCESSINGS

This research contributes to a further understanding of the process of criminalization by examining case information that affects prosecuting attorneys' decision to continue felony prosecution following grand jury indictment. It is suggested that prosecuting attorneys, like other decision makers in organizations engaged in people-processing activities, are confronted with uncertainty emerging from an inability to unilaterally exercise control over all actors involved in the transformation process. By relying on a self-imposed decision criteria of prosecutorial merit defined as the likelihood of obtaining a jury trial conviction, prosecutors attempt to impose a "bounded rationality" on the exercise of discretion in screening decision making. This rationality is one that is sensitive to concerns for effective management of victims and witnesses. It is argued that information relevant to victim/witness credibility and/or cooperation in prosecution is brought to bear in deciding prosecutorial strategies of case processing. Therefore, it is hypothesized that, controlling for legal and extralegal variables, case information that decreases uncertainty concerning victim/witness management will increase the probability of continued prosecution. Support is found for this uncertainty avoidance thesis. In addition, the data indicate that prosecuting attorneys are less likely to continue prosecution of cases involving female defendants and are more likely to continue prosecution of defendants whose bail outcome includes financial conditions for release.     

Beyond Discretion: Prosecution, the Logic of Sovereignty, and the Limits of Law

Today it is widely recognized in both academic literature and the mainstream media that prosecutors have substantial discretion. Yet prosecutorial decisions involve, in our view, something more than a straightforward exercise of discretion. In this article we move from the language of discretion to that of sovereignty to describe prosecutorial power. In so doing we want to move from the language of administration to the language of power. Focusing on the decision not to prosecute, we argue that prosecutorial decisions participate in, and exemplify, the logic of sovereignty and its complex relationship to legality.
By drawing on Carl Schmitt and Giorgio Agamben, we seek to recast prosecutorial decision making as something that allows prosecutors to grant exemptions from the reach of valid law. The sovereign power of prosecutors is most vividly on display when they decline to bring charges where there is a legally sufficient basis for doing so. By exercising what is, in most jurisdictions, an all but unreviewable power, they can and do exempt individuals from the reach of valid law.     

Modeling the Evolution of Legal Discretion.An Artificial Intelligence Approach

Abstract. Much legal research focuses on understanding how judicial decision‐makers exercise their discretion. In this paper we examine the notion of legal or judicial discretion, and weaker and stronger forms of discretion. At all times our goal is to build cognitive models of the exercise of discretion, with a view to building computer software to model and primarily support decision‐making. We observe that discretionary decision‐making can best be modeled using three independent axes: bounded and unbounded, defined and undefined, and binary and continuous. Examples of legal tasks are given from each of the eight ensuing octants and we conclude by saying what this model shows about current legal trends. We should stress that our taxonomy has been based on our observations of how discretionary legal decisions are made. No claim is made that our model is either complete (providing advice in every domain) or exact, but it does help knowledge engineers construct legal decision support systems in discretionary domains.     

Displaced discretion under Ohio sentencing guidelines

The argument that curbing judicial sentencing discretion generates more prosecutorial discretion at earlier decision points in case processing received little empirical attention beyond Miethe's (1987) before/after study of the Minnesota guidelines. This article presents an examination of whether Ohio's sentencing reform resulted in significant changes in prosecutorial decisions related to indictment severity, dropped charges, charge reductions, and overall plea bargains. The implementation of determinate sentencing guidelines corresponded with a significant yet modest increase in the likelihood of charge reductions only. Some changes also occurred in the specific effects of various defendant characteristics on some of the outcomes examined, but these changes did not uniformly result in harsher dispositions for defendants facing greater social and economic disadvantage. Similar to Miethe's observation regarding Minnesota's sentencing scheme, any increase in levels of prosecutorial discretion that might have occurred under Ohio's latest scheme had not resulted in substantive extra-legal disparities in case dispositions.     

I — Legislation

In this paper, the various challenges to the prosecutorial discretion of the Director of Public Prosecutions (DPP) are identified. It deals with two distinct areas of prosecutorial discretion: first, the scope of judicial review relating to prosecutorial decision in the light of the Privy Council judgment of Mohit v The Director of Public Prosecutions [2006] UKPC 20; and secondly, the impact and implications of the decision of the Purdy case which imposes an obligation on the DPP to issue a policy statement as regards conduct which will not be the subject matter of a prosecution even though there may be sufficient evidence to prosecute such conduct under the relevant legislation.     

Overlooking the criminally compassionate: what are the implications of prosecutorial policy on encouraging or assisting suicide?

The decision of the House of Lords in the case of Purdy compelled the Director of Public Prosecutions (DPP) to promulgate guidance as to the exercise of prosecutorial discretion with respect to those suspected of an offence under the Suicide Act 1961. Consequently, the Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide now sets out determining factors for potential culpability in encouraging or assisting suicide. This paper discusses the implications of the Policy, particularly with respect to the role of compassion as a key determining factor which effectively decriminalises acts of assisting or encouraging suicide in the majority of cases, despite such acts remaining technically criminal. Following the DPP's assertion that the location of the actual suicide is irrelevant to the prosecutorial decision, this article considers whether some elements of the Policy might belie this assertion. The apparently heightened risk of prosecution now faced by doctors and other healthcare professionals and workers is also considered. Finally, in light of the apparent prosecutorial endorsement of compassionate assisted suicide, this article questions whether we might now expect the imminent legalisation of assisted suicide.     

Direct and Indirect Effects of Case Complexity, Guilty Pleas, and Offender Characteristics on Sentencing for Offenders Convicted of a White-Collar Offense Prior to Sentencing Guidelines

Previous research on the punishment of offenders convicted of a white-collar offense estimated models that specify only direct effects of defendant characteristics, offense-related variables, and guilty pleas on sentence severity. Drawing from conflict or labeling theories, much of this research focused on the effects of offender's socioeconomic status on sentence outcomes. Findings from this research are inconsistent about the relationship between defendant characteristics and sentence severity. These studies overlook how differences in case complexity of white-collar offense and guilty pleas may intervene in the relationship between offender characteristics and sentence outcomes. This study seeks to contribute to an understanding of federal sentencing prior to the federal sentencing guidelines by testing a legal-bureaucratic theory of sentencing that hypothesizes an interplay between case complexity, guilty pleas and length of imprisonment. This interplay reflects the interface between the legal ramifications of pleading guilty, prosecutorial interests in efficiency and finality of case disposition in complex white-collar cases, and sentence severity. Using structural equation modeling, a four-equation model of sentencing that specifies case complexity and guilty pleas as intervening variables in the relationship between offender characteristics and length of imprisonment is estimated. Several findings are noteworthy. First, the hypothesized interplay between case complexity, guilty pleas, and sentence severity is supported. Second, the effect of offender's educational attainment on sentence severity is indirect via case complexity and guilty pleas. Third, offender's race and gender effect length of imprisonment both directly and indirectly through the intervening effect of case complexity and guilty pleas. These findings indicate the need to specify sentencing models that consider the direct and indirect effects of offender characteristics, offense characteristics, and guilty pleas on judicial discretion at sentencing.     

Prosecuting 'Gross' Medical Negligence: Manslaughter, Discretion, and the Crown Prosecution Service

This article examines prosecutions of health care professionals for gross negligence manslaughter following fatal errors committed in the course of their work. Unease has long surrounded the use of 'gross negligence' as a form of criminal liability, and particularly as it applies to health care professions operating in high-risk settings. The recent dramatic rise of such prosecutions calls for a closer understanding of the processes by which important prosecutorial decisions are made. In particular, this calls for an investigation into the exercise of discretion by prosecutors in interpreting the loosely defined and contested concept of gross negligence. This article analyses data obtained from a statistical analysis of 'medical manslaughter' cases and also from interviews with crown prosecutors. Discussion of the main findings leads to the conclusion that the offence of gross negligence manslaughter is incapable of any objective and fair measurement and ought to be abolished.     

Community influence on prosecutorial dismissals: A multilevel analysis of case- and county-level factors

Researchers have recently recognized the importance of social context for developing a more complete understanding of the sentencing process where community characteristics help to account for variation in sentencing practices from one legal jurisdiction to the next. Similar developments, however, have been nearly absent in the study of prosecutorial decision making; this is particularly important given the substantial authority afforded prosecutors throughout the criminal justice process. To address this considerable shortcoming, the current study used multilevel modeling to test the effects of several theoretically relevant community-level measures on the prosecutor's decision to dismiss criminal charges. Findings indicated that multiple measures of social context influence prosecutorial decision making, but not always as specified by the examined theoretical frameworks. Implications of the current study are discussed with regard to theory, research, and policy.     

行政公益诉讼中检察介入行政裁量权研究

行政自由裁量权的司法控制是法治实践中的难题,行政公益诉讼制度确立后,为检察权介入行政裁量权从而加强对其监控提供了契机,这是由公益的柔性化、行政与公益的复杂关系、公益诉讼中检察监督的深度、公益诉讼中诉权的广延性所决定的。目前检察机关可介入行政公益中的判断裁量权、选择裁量权、许可和处罚裁量权、行政处置裁量权、行政立法裁量权等。具体而言,检察机关可通过使行政裁量权得到规劝、使行政裁量权得到合理解释、使行政裁量权充实裁量依据、使行政裁量权得到合理建议、使行政裁量权得到拓展等路径介入。     

The Federal/State Criminal Prosecution Nexus: A Case Study in Cooperation and Discretion

Contemporary studies of prosecutorial decision making at the state level are infrequent, and even fewer studies examine the discretionary decisions of federal prosecutors. In addition, virtually no scholarly literature examines the growing overlap between federal and state criminal jurisdiction. This paper advances both theoretical and empirical understandings of the organizational and political contexts in which prosecutorial discretion takes place by exploring the nexus between federal and state criminal jurisdictions. Drawing on interview research in a large urban area with several active federal/state cooperative prosecution programs, we suggest that these cooperative relations open new avenues of discretion for local and federal prosecutors; limit the authority of other court actors, including state judges; and erode the distinctions between federal and local criminal jurisdiction.     

Reflections on the Exercise of Prosecutorial Discretion 50 Years After Publication of The Challenge of Crime in a Free Society

In The Challenge of Crime in a Free Society, the U.S. President's Commission on Law Enforcement and Administration of Justice under President Johnson in 1967 acknowledged the influential role that prosecutors play but lamented the fact that their highly discretionary charging and plea bargaining decisions were often made haphazardly and inconsistently. The Commission called for more transparency and accountability in charging and plea bargaining processes. I examine the exercise of prosecutorial discretion in the 50 years since the publication of the Commission's report, with a focus on the results of research and changes in policy and practice. Although the charging and plea bargaining processes have not been subject to the type of scholarly scrutiny directed at judges’ sentencing decisions, the research that has been published in the past several decades has become more theoretically grounded, methodologically sophisticated, and transdisciplinary. In terms of policy, decisions handed down by the Supreme Court since the 1960s have provided some minimal regulation of charging and plea bargaining, and the reforms embraced by state and federal prosecutors have affected the exercise of prosecutorial discretion.     

Capriciousness or Fairness?

Abstract

Previous research on capital sentencing have discovered quantitative proof of discrimination, especially by race of the victim. The present study examines prosecutorial decision making in Kentucky. Using a method of analysis developed by Berk et al., it seeks to determine the level of capriciousness (uncertainty) present in the prosecutorial decision to seek the death penalty. Kentucky prosecutors were most likely to seek the death penalty in cases where black offenders killed white victims.     

Prosecutors' Discretionary Use of the Grand Jury to Initiate or to Reinitiate Prosecution

This study examines the exercise of prosecutorial discretion in two areas: the decision to initiate prosecution by indictment (in lieu of a preliminary hearing) and the decision to reinitiate prosecution by indictment after preliminary hearing discharge. To explore concerns about prosecutors' use of the grand jury to pursue prosecution in cases with insufficient evidence to convict at trial, the author studied prosecutors' practices in murder cases in Cook County, Illinois. To gather the information the author collected disposition data for prosecutions initiated by grand jury and by preliminary hearing, interviewed prosecutors, and examined prosecutors' case documents indicating reasons for declining or pursuing prosecution of discharged cases. The data show similar conviction rates for prosecutions initiated by grand jury and those by preliminary hearing but a significantly lower rate for prosecutions reinitiated after discharge. Three reasons for the latter finding are discussed: special evidentiary characteristics of reinitiated cases, seriousness of the offense studied, and prosecutors' special motivations and practices in serious cases. The author suggests that although prosecutors typically are constrained by practical, organizational, professional, and ethical concerns, they may in extraordinary situations reinitiate prosecution of weak cases. In light of the study's findings, the author assesses several proposals to eliminate or restrain prosecutors' power to reinitiate.     

Diverting and Abdicating Judicial Discretion: Cultural, Political, and Procedural Dynamics in California Juvenile Justice

Although tensions between substantive and formal rationality in the adult criminal justice system have received a great deal of attention, the existence of these tensions in the juvenile justice system has received little scholarly consideration. I seek to remedy this gap by exploring how punitive policies associated with the war on crime impact the formal and informal process of justice, the court community and work group, and the exercise of discretion in the juvenile courts. Drawing on qualitative data collected in three juvenile courts in Southern California, I identify the mechanisms by which prosecutors divert judicial discretion from the traditional rehabilitation-oriented bench officers to bench officers who are more accepting of the criminalization of juveniles. In addition, I investigate how and why rehabilitation-oriented bench officers at times abdicate their decisionmaking authority and make rulings that contradict their own assessments. My findings suggest that as the war on crime is extended to youth, the juvenile courts increasingly share the criminal courts' emphasis on offense rather than offender, enhanced prosecutorial power, and adversarial relationships within the court.     

检察官起诉裁量权的外部控制及其反思——以国际刑事诉讼为视角

在国际刑事诉讼中,检察官起诉裁量权的外部控制不可或缺,而单纯的外部控制却凸显范围有限、效果不佳、成本高昂等局限与不足。与单纯的外部控制相比,内部控制具有主动性、自律性的特点,且这种内部监督和控制的限度还与国际刑事法治的境界相契合。在当前检察官的起诉裁量权广泛存在且业已渗入非缔约国司法领域的情况下,只有将基于内外因辩证关系原理指导下的双重控制有机结合起来,才能防范裁量权滥用,促进实现裁量正义,保证国际刑事诉讼中检察官裁量权的公正行使。     

Discretion at the Pre-Trial Stage: A Comparative Study

This study aims to explore the discretion of the police and prosecutors during the pre-trial stage based on six systems of criminal justice: England and Wales, the United States, France, Germany, Japan, and South Korea. In criminal proceedings, discretion plays a significant role in supplementing as statutes cannot provide for every circumstance. In particular, at the pre-trial stage, public prosecutors can conclude their cases by exercising considerable discretion. Such discretion differs depending on the jurisdiction. The differences demonstrate distinctive prosecutorial roles. Based upon these findings, I propose that in general, the public prosecution service plays a filtering role. Unlike other jurisdictions, in Korea the prosecutors act as monopolists. However, justice cannot be achieved by the monopoly of one legal actor in the criminal proceedings.     

An Examination of the Influence of Strength of Evidence Variables in the Prosecution’s Decision to Dismiss Driving While Intoxicated Cases

The majority of research examining prosecutorial discretion has focused on legal factors such as the seriousness of the offense or the extra-legal characteristics of the accused including race/ethnicity and gender. The amount of variance explained by court researchers, however, remains quite low. The present study extends previous research examining the primary determinants of prosecutor??s decision to dismiss or fully prosecute focusing on driving while intoxicated cases. We focus on the predictive contribution of the strength of evidence relative to legal and extra-legal variables. The data consist of 2,358 driving while intoxicated cases filed in Harris County, Texas during the first 8?months of 1999. The findings strongly support the inclusion of strength of evidence variables in court research and further suggest their past omission may have attributed significance to spurious relationships.     

Prosecutorial Discretion: An Examination of Substantial Assistance Departures in Federal Crack‐Cocaine and Powder‐Cocaine Cases

Recently there has been a call for research that explores decision‐making at stages prior to sentencing in the criminal justice process. Particularly research is needed under a determinate sentencing system where judicial dispositions are usually restricted by guidelines, which increases the importance of earlier decision‐making stages. As an answer to this call, and in an attempt to build on currents studies on the effects of departures as an intervening mechanism, and a source of unwarranted disparity, this study explores federal sentencing data on offenders convicted of crack‐cocaine and powder‐cocaine offenses. Although decision‐making of all criminal justice actors generally, and prosecutors specifically, has been the subject of much research, studies have yet to resolve the nature and outcome of their “autonomous” discretion. This autonomy becomes especially salient regarding prosecutorial decisions for substantial assistance departures. In deciding who receives a substantial assistance departure, the prosecutor has carte blanche power.     

A Postconviction Mentality: Prosecutorial Assistance in Exoneration Cases

Prosecutors’ broad discretionary power has long been of interest to scholars, yet little is known about discretionary choices after conviction. This study addresses the gap by exploring prosecutors’ willingness to assist with exonerations. Using data from the National Registry of Exonerations (N = 1,610), the author identifies factors that influence prosecutorial assistance. Results from generalized ordered logistic regression models demonstrate that avoiding uncertainty and maintaining workgroup relationships drives decision-making. Findings indicate that prosecutors are less likely to support exonerations involving law enforcement or forensic misconduct, violent offenses, and inadequate legal defense and more likely to support exonerations involving innocence organizations, guilty pleas, and black and Hispanic defendants. These findings suggest that prosecutors’ interest in protecting professional reputations, maintaining relationships, and optimizing efficiency influences discretion in the postconviction stage just as in earlier stages of case processing.