Prosecutorial discretion to defer criminalization: The effects of defendant's ascribed and achieved status characteristics

This research contributes to a further understanding of prosecutorial discretion by exploring tenets of casual attribution theory and etiology of bias theory as each informs an uncertainty avoidance perspective on the prosecutor's decision to divert felony drug defendants from criminal prosecution and into a treatment program. The sociolegal consequences of the exercise of this early screening decision are expressed by both conflict theorists and labeling theorists. Our analysis involves estimating main effects and interaction effects of defendant ascribed status and achieved status on the likelihood of diversion. The findings indicate partial support for hypotheses derived, from the theoretical perspectives pursued. In addition these findings point to a more complex model of the subjective nature of the exercise of prosecutorial discretion, a model that benefits from understanding the salience of minimizing uncertainty in the decision to criminals.     

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.     

Prosecutorial discretion in seeking death: An analysis of racial disparity in the pretrial stages of case processing in a midwestern county

In the 1987 case of McCleskey v. Kemp, the U.S. Supreme Court appeared to foreclose the possibility of challenging racial bias in capital sentencing by using statistically based claims of discrimination. McCleskey, however, does not prevent a challenge to decisions made by particular individuals during the capital punishment process. In this study we examined pretrial decisions made by, or under the direction of, one prosecutor to determine whether those decisions had been influenced by race. We found that homicide cases involving black defendants and white victims fared worse than other racial combinations in all of the pretrial decisions made: They were more likely to result in first-degree murder charges, to be served notice of aggravating circumstances, and to proceed to capital trial.     

检察文化在现代法治语境下的再思考

检察文化就是指检察制度的法律文化性格,而正义本位必须凸现为检察文化的性格。这一法律价值立场,是检察文化区别于其他类型的法律文化的根本所在,是多元法律文化的选择,符合检察权的历史使命和我国刑事诉讼的构造。在现代法治的语境下,先进的检察文化可以为检察制度的完善和变革提供自然的、根本的动力,并担负起完成检察制度的价值构造、丰富检察基础理论、提高检察队伍素质、改塑检察行政管理模式、推动检察改革等重任,最终推动检察制度的理性发展。     

Psychiatric history,due procedural safeguards,and the use of discretion in the criminal justice process

Using a stratified random sample of all male inmates released from one state's correctional facilities during a 13-month period (N = 550), this research investigates the impact of an extralegal variable (history of psychiatric hospitalization) on decisionmaking in stages in the criminal justice system at which defendants are granted more and fewer due procedural safeguards. On the basis of the work of Goffman and Green, it is hypothesized that this variable will not equally affect decisions made at various points in the criminal justice process. Instead, psychiatric history will have less impact at points in the process where the defendant is granted more due procedural safeguards (e.g., sentencing), with its significance increasing where the defendant receives fewer due procedural safeguards (e.g., parole). The results are consistent with the hypothesis: A history of psychiatric hospitalization was not significant in the decision regarding sentence length, though it became highly critical in the decision to parole, even after other legal and extralegal variables were controlled. The context in which these decisions are made may also be relevant to a fuller understanding.     

Between discretion and control: Reflections on the institutional position of the Commission within the European citizens' initiative process

This article considers the institutional position of the Commission within the European citizens' initiative (ECI) process, with particular emphasis on its decision regarding the admissibility/registration of a proposed ECI, and its final decision on the outcome of an ECI which has met the necessary levels of support. The purpose of this contribution is to juxtapose the case‐law of the Court on the Commission's discretion and the relevant provisions of the Treaties with the evolution of European integration and, more specifically, the evolution of the Commission's role therein. Viewed under this prism, the Commission's powers at the registration stage (which in any event clearly fall under the scope of judicial review) are compatible with the constitutionalisation of the Union, whereas the Commission's width of discretion at the follow‐up stage, while compatible with the Commission's prerogatives, cannot easily be reconciled, nonetheless, with the Commission's limited legitimacy when compared to that of the co‐legislators, the fact that it may not always represent the Union interest, and the latter's pragmatic losses within the EU institutional balance.     

The desirability of goal conflict within the criminal justice system

A pervasive interest in the creation of a monolithic system for the administration of justice which is characterized by the lack of fragmentation and goal conflict is found throughout the criminal justice literature. This paper questions the basis and desirability of such a proposal. It is argued that criminal justice exists in a sociopolitical environment in which diverse groups exercise influence in accordance with their own interests. For this reason, it is highly unlikely that a single set of values could be identified upon which to base a monolithic system. It is further argued that goal conflict within criminal justice is desirable in that different interests can be reflected, there is a basis for system adaptation and change, and the system can better promote the smooth processing of offenders.     

实在法视野下的检察权性质与地位

从实在法角度分析,我国的检察权既不属于行政权,也不等同于法律监督权,而是与行政权、审判权相并列的一种独立的国家权力;检察权是一种复合性的权力,包括法律监督权、公诉权与批准逮捕权;根据我国宪法、法律以及检察权本身的诉讼性质,检察权可与审判权并称为司法权;相对于西方国家将检察机关纳入行政系统的立法例而言,我国检察机关的宪法地位更有利于法治的实现。     

Race and decision making within juvenile justice: The importance of context

Previous tests of the influence of race on decision making within juvenile justice proceedings have traditionally focused on case-level variables and/or macrolevel factors that characterize the jurisdictions under study. Often excluded are measures of the attitudinal context within which decision making occurs. Using a revised conflict perspective that incorporates the role of racial stereotyping, hypotheses are developed centering on racial differences in case processing decisions within four midwest jurisdictions. Attitudes of juvenile court officials toward the punitiveness of the juvenile court and perceptions regarding differences between the behavior and attitudes of whites and those of African Americans are included in additive and race interactive models of five decision-making stages. Results indicate both lenient and harsh treatment of African Americans compared to whites. Hypotheses regarding racial stereotyping in the decision-making process receive some support and the discussion focuses on how inconsistent racial effects may be a function of variation in structural “coupling” across system decision points.     

The Prosecution Service Function within the Hungarian criminal justice system

The national criminal justice system of Hungary is described. Special attention is paid to the Prosecution Service Function within this framework and its relationship to police and courts. The article not only refers to legal provisions but to the factual handling of criminal cases as well.     

Forensic psychiatric expert witnessing within the criminal justice system in Germany

In recent years, the number of occupied beds in German forensic–psychiatric hospitals has continued to rise. Diversion refers to the removal of offenders from the criminal justice system at any stage of the procedure and court proceedings. There are no specific diversion programs in Germany but diversion does in fact happen via legal regulations that are based on the construct of legal responsibility. The assessments of responsibility as well as risk are the core tasks of forensic–psychiatric expert witnessing in Germany. Recommendations of an interdisciplinary working group serve as a guide to operationalize this forensic–psychiatric task. These recommendations list formal minimum requirements for expert reports on the question of criminal responsibility and risk assessment as well as minimum standards regarding content and in writing the report.     

民事抗诉基础的转换与补充性抗诉机制的建立

现行民事抗诉机制的基础表现在政治、认识论和司法方面,但传统社会中支持该抗诉机制的基础,在当今社会面临诸多挑战,出现了许多困惑.新时期民事抗诉的机制建立,最根本的应是抗诉基础的重新设计或历史性转变.这种转变应是从对审判权的制约到对当事人的诉权保障,从与当事人申请再审并列设计的民事抗诉转化为补充当事人再审申请权的抗诉机制.该机制体现在申请再审的前置、抗诉的期间、抗诉在整个再审中的地位、抗诉机关的权利等问题的处理中.     

检察机关“扩权”视野下检察权之保障

权力设置应当遵循受制约与受保障之原则,失去监督之权力必然导致腐败,缺乏保障之权力必然遭遇架空.权力运行过程中总会受到一定的干扰,因此权力设置应当配备一定的保障机制,使得权力享有者有足够的能力排除不当之干预.我国宪法规定检察院是法律监督机关,但由于缺乏足够的运行保障机制,使得检察权独立运行受制于众多因素,导致检察监督未能取得预期的效果.在当前司法公信力成为社会关注焦点之际,有必要正确认识检察权运行保障机制存在的突出问题,完善检察权运作的保障机制,强化检察监督的实效.     

检察建议研究

检察建议是检察机关针对有关部门或单位存在的问题,提出相应的对策,督促其改进工作、消除隐患、建章立制、规范管理,以预防和减少违法犯罪的非诉讼形式的检察活动。检察建议在法律依据、适用范围及效力等方面存在诸多问题,必须推动检察建议立法,完善与检察建议相配套的工作机制,促进检察建议向制度化和规范化方向发展。     

司法改革视野下检察业务考评机制改革新思考

检察业务考评对驱动检察机关职能发挥、实现检察机关价值有重要作用。在本轮司法改革前,我国检察业务考评机制呈现层级化运作方式,由上级院考评下级院,检察官个人不作为考评主体;此后,各地在层级化考评运作下,探索构建对员额检察官个人的考评机制。我国检察业务考评的发展回应了检察改革实践,但尚未充分适应中国特色检察制度的要求,尚未做到完全按照检察规律办事,急需创新制定适应司法改革的考评措施。应从层级化考评的完善、创新设置个人考评、考评的组织与程序三方面进一步改革。