The end of police prosecutions: Symptom of changing values in english criminal justice

This article contrasts the traditional English prosecutorial system, and its underlying values, with the new Crown Prosecution Service and the related values which have emerged from five years of official study and planning of prosecutorial reform. The traditional system reflected the English ideal of the amateur generalist. Under this system the police, acting as citizens, undertook most prosecutions, hiring legal assistance as needed. Ower the last twenty years, about three-quarters of the English police forces set up prosecuting solicitors departments. While these institutions give professional legal assistance to many police, they were purely local arrangements without statutory basis and legally similar to the traditional ad hoc arrangements. In 1986 the Crown Prosecution Service will be initiated. This is the product of a process of development which includes a Royal Commission, two governmental working parties, a white paper, a bill, and a managerial study. The result is a hierarchical structure of legal professionals independent of the police who will handle virtually all prosecutions. This prosecutorial structure exhibits the characteristics and values of modern rationalistic bureaucracy described by Max Weber. The adoption of these values in English criminal justice indicates the likelihood of change in other aspects of the system which rest on the conflicting traditional values.     

The functional nature of police reform: The ‘myth’ of controlling the police

For at least fifty years, major movements attempted to reform police and their institutions through professionalization, policy making, and administrative decentralization. One major goal of these efforts was to subordinate street officer discretion to bureaucratic due process. Some recent evidence suggests that such reforms produced primarily the appearance of change without fundamentally altering the status quo. An alternative hypothesis is proposed: Reformers ignored the functional nature of the police role as community-based, extra-constitutional in peacekeeping situations, and reflective of the values related to the maintenance of order.

It may be that liberal society solves the anomaly of the police function by fostering the myth that police are subordinate to due process constraints, while leaving them relatively free in a practical sense to respond to the need for order maintenance and peacekeeping. Effective handling of disorder may require police autonomy, while attempting to subordinate them to bureaucratic control may impair this ability. Police accountability in liberal society, as well as the many reforms designed to achieve it, remains problematic, especially in light of a recent important study suggesting the possibility that police effectiveness against community disorder may be a casualty of many of these reforms.     

Sexual Assault Case Outcomes: Disentangling the Overlapping Decisions of Police and Prosecutors

The rape reform movement of the 1970s and 1980s was designed to improve the likelihood of prosecution and conviction in sexual assault cases. However, there is evidence that the attrition rate for sexual assaults reported to the police remains high, and that the locus of case attrition is arresting and charging decisions. In this paper, we analyze police and prosecutorial decision-making in sexual assault cases using quantitative data on sexual assaults reported to the Los Angeles Police Department and the Los Angeles County Sheriff’s Department in 2008. We argue that decisions made by police and prosecutors should not be examined in isolation from one another and that researchers who analyze arrest decisions by examining only cases that are formally cleared by arrest or who focus only on charging decisions that follow the arrest of a suspect may be ignoring important aspects of police and prosecutorial decision-making. This is confirmed by the results of our study, which reveal that a significant proportion of cases in which the police appear to have probable cause to make an arrest do not result in the arrest of the suspect and that a substantial number of cases are rejected for prosecution by the district attorney before an arrest is made. Moreover, the factors that predict arrest and charging vary depending upon the way in which the outcome is operationally defined. These results have a number of important policy implications for police and prosecutors handling sexual assault cases.     

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.     

POLICE SUBCULTURE RECONSIDERED

Most comprehensive discussions of the police acknowledge the inability of legal and bureaucratic regulations to determine officer behavior. Attention is turned instead toward the informal norms developed within the police subculture. These discussions, however, tend to overstress the chasm between the formal and informal. They also provide inadequate tools for understanding differentiation, conflict, and change within police departments. I address these shortcomings here by mobilizing a particular conceptualization of the term "normative order"—as a set of rules and practices oriented around a central value. Six such orders are crucial to policing: law, bureaucratic control, adventure/machismo, safety, competence, and morality. I illustrate the importance of each by drawing upon ethnographic observations of the Los Angeles Police Department, and explain how my conceputalization offers a comprehensive yet flexible means to understand the social world of policing.     

Compstat and bureaucracy: A case study of challenges and opportunities for change

COMPSTAT has been heralded as an innovative and rational crime control program, but our research shows that its implementation presents police departments with a set of opportunities and challenges. Using Weber's theory of bureaucracy, we present a case study demonstrating how COMPSTAT's key elements are shaped by extant organizational arrangements. In renewing an emphasis on the crime-fighting goal and the command hierarchy of the Lowell Police Department, the study site, COMPSTAT presented an opportunity to reinforce certain traditional features of police bureaucracy. However, by strengthening control through its accountability mechanism, COMPSTAT interfered with its own operation. Furthermore, the persistence of other bureaucratic features—functional specialization, formalization, routine, uniformity, and secrecy—limited organizational change. Our case suggests that the most significant challenge for any department is picking the compromise between existing bureaucratic features and COMPSTAT's core elements that most suits its needs and those of its constituencies.     

侦诉协作机制的价值分析与制度构建

建立侦诉协作机制,增强侦诉合力,形成"大控方"的追诉格局,对于保证刑事诉讼活动的顺利进行,具有重大的价值和意义。目前,司法实务部门对侦诉协作机制所进行的积极探索,为该机制的立法构建提供了有益的实践经验。在《刑事诉讼法》再修改时应当通过程序设计对侦诉协作机制作出明确规定,并完善相应的配套制度,推动该机制良好地运行。     

“行动中的”刑事诉讼--基于抓捕嫌疑人的侦查技术之展开

抓捕是一项身体技艺,其对侦查人员之资质的要求,在内容上与对法官的资质要求有所不同。由此切入来认识公安的内部构成和检警关系,便具有了不同的视域。在检察院的反贪反渎职能转隶后,由监察委负责抓捕的涉案人员之数量和构成发生了较大变化。从保障抓捕行动的技术需求出发,持枪权和法警、武警配合的问题亟待重新审视。由于抓捕总是处于具体的场域内,而在强制实施抓捕时武警的作用突出,故而武警在司法体制中的地位趋强。抓捕后将涉案人员带离现场和押解的行动有着丰富的细节,从而对于一些诉讼制度的构建具有基础性的决定意义。作为侦查行动技术的抓捕,对国家意志在刑事诉讼中的实现处于基底位置。但是,目的不能说明手段正当。以行动为导向的刑事诉讼法学研究,与从一个元叙事出发进行公理体系的理论推演,这两种方法具有知识互补性。     

论监督型民事抗诉制度的回归及路线

我国民事抗诉制度始终身处救济型的定位,既有悖于检察机关的法律监督者身份,也使抗诉的现实功用一路下滑,终至角色尴尬、权能虚化的境地。为从根本上逆转这一颓势,改革应以监督型抗诉替代救济型抗诉为基本方向,实施策略则是在纯粹的法律监督导向下重塑抗诉制度。如此,抗诉的事由首先将被限于程序违法和国家利益、社会公共利益受损;其后,检察机关理当自主地行使监督权,拥有独立提起抗诉和迳行启动再审审理的能力和权力;最后,检察机关的参与造成了再审审理的对象及主体结构上的特殊,有必要另设与之相宜的独立抗诉再审程序。     

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.     

The ICTR Ten Years On: Back to the Nuremberg Paradigm?

Since his appointment in 2003, the Prosecutor of the InternationalCriminal Tribunal for Rwanda (ICTR) remains silent on the issueof prosecuting officials of the victorious Rwandan PatrioticFront (RPF). There is certainly no lack of credible reportsabout massive violations of human rights and international humanitarianlaw by the RPF both in Rwanda and in neighbouring countries,in 1994 and thereafter. The Prosecutor and the UN Security Council,despite lip service to the contrary, seem less than eager toconfront the government in Kigali. It is therefore to be fearedthat prosecutorial practice at the ICTR will follow the Nurembergparadigm. This one-sided policy may, however, have far-reachingconsequences.     

Holding to Account a Possible European Public Prosecutor Supranational Governance and Accountability Across Diverse Legal Traditions

The Lisbon Treaty provides a legal basis for the Member States of the European Union (EU) to establish a European Public Prosecutor (EPP) with competence to prosecute, in the courts of the Member States, crimes against the financial interests of the Union. Article 86 of the Treaty on the Functioning of the European Union, provides that the Member States may unanimously, or through flexible cooperation where nine Member States agree, establish such a European-level prosecution body, with the possibility for its powers to be extended by unanimity to include serious crime having a cross border dimension or affecting more than one Member State. Within the legal traditions of the Member States, means of holding prosecution authorities to account vary considerably. Probably the strongest form of accountability exists in the civil law tradition of Member States that permit appeals to judicial bodies for decisions not to prosecute, which contrasts with the traditional common law reluctance to even give reasons for not prosecuting. Similarly, the ways in which prosecution authorities interact or overlap with police functions, and thus with general mechanisms of police and/or bureaucratic accountability, differ. Some of the particular features of EU cooperation suggest additional accountability issues, notably, questions concerning competence spill-over and problems of remoteness. This paper seeks to address how to conceptualise governance and accountability of a possible EPP outside of the context of a trial (the latter entailing a type of open legal accountability that can be studied in its own right) and including the question of the definition of competences.     

检察机关组织体系及其重构

目前,我国检察组织体系在设计上存在缺陷,在实践中暴露不少问题,根本的原因是检察权的地方化。应按照检察目标和检察工作规律的要求进行重构。通过对检察机关人事管理体制、物质保障体制、编置体系和检察官管理体制等改革,努力构建机构、编制、经费保障和执法等均相对独立的检察组织体系。     

Changing Patterns of Culture and its Organisation of the Police in a Society of Transition - Case Study: Hungary

The authors examine what happens to the police when a country is in transition towards a more democratic organisation. They use Hungary as the main example, but also provide information about other Eastern European countries. First they elaborate on the case of continuity - discontinuity. Transition is not a result of one moment, it is more appropriate to talk about the erosion of previous values and patterns having taken place for years or even decades instead of their sudden change. There is, however, an indisputable influence of politics on the police. In the course of the change of regime, not only the police but also all the institutions that previously served (in varying degrees) the institutionalised control of criminality, came to a crisis point and their existence and functions became questionable. The authors deal with the vacuum of legitimacy, and possible answers, such as auditing of the police, democratisation and several ways to establish accountability. Finally, a model of the democratic organisation of the police (demilitarised, decentralised and de-concentrated) is sketched.     

An abolitionist theory on crime: ending the abusive relationship with Racist-Imperialist-Patriarchy [R.I.P.]

In this article I re-assess the parameters of what we seek to abolish as we pursue penal abolition. I apply Black Feminist Hauntology to exorcize the barriers of traditional and ineffective deconstructions of crime and criminalization. To illustrate these weaknesses I discuss police killings and related vigilante white supremacist violence. I present the aftermath of the deaths and trials (when there were trials) to bring to light the large disconnects that exist between abolitionism and the world in which crime lives. To begin to address this disconnect I present an abolitionist theory on crime founded upon five pillars of assessment: abolition’s perceived minimization of violence; the abusive R.I.P. relationship between crime and justice; a cultural phenomenon of achieving significance through proximity or by association; abusive naturalizations of violence that have been unaddressed in penal abolition; locating the struggles to exit abusive relationships within the core of our studies of criminal justice and penal abolition. I conclude that when penal abolitionists conceive of crime as a social construction tied to criminal justice institutions alone, as opposed to part of a structurally Racist-Imperialist-Patriarchal [R-I-P] abusive relationship, they stunt the possibilities of abolition in manners akin to pushing against a 500 year old tree from its trunk and expecting it to topple over without any account for the roots that hold it firmly in the ground.     

THE POLICE AND HIGHER EDUCATION The Challenge of the Times

As law enforcement agencies continue to increase their educational standards, it is incumbent upon colleges and universities to offer curricula that prepare policemen to meet the challenge of modern times Criminal justice programs should pave the way for innovation and change in the police establishment by producing well-educated men, with a strong liberal arts background, capable of understanding self, community, and the role of the police in modem society.     

Using the state to change society: The example of ‘domestic violence’

North American research on the policing of ‘domestic violence’ has been very influential among policy makers in Great Britain. In particular, research which purports to verify the deterrence value of arrest has prompted the establishment of over thirty domestic violence units in London and similar initiatives elsewhere in Britain. The paper will outline the nature of the traditional police response to ‘family violence’ in London and the nature of the experimental innovations. Changes in police practice with regard to this type of violence will be put in the context of the organizational constraints and possibilities of policing. Finally, changing police responses to domestic violence will be evaluated in terms of the debate over the possibility of using the state or its organs to achieve social change.     

The Influence of Evidence on Animal Cruelty Prosecution and Case Outcomes: Results of a Survey

Two hundred prosecuting attorneys completed a survey concerning priorities in taking on animal cruelty cases and the factors that help or hinder prosecuting such cases. Respondents commented on the priority given such cases. Questions also addressed specific kinds of evidence that had been used to decide whether to take on a cruelty case and were used in court. Results showed that prosecutors most frequently relied upon “traditional” sources of evidence, including detailed medical and crime scene reports and good quality photographic evidence. Other sources of forensic evidence such as DNA, computer forensics, forensic accounting, blood, and trace evidence were rarely employed. Veterinary forensic evidence, including forensic necropsies and detailed medical reports, was viewed as an important factor by a majority of prosecutors in deciding whether to accept a case for prosecution and in achieving a successful outcome, but a need for additional training for investigators was indicated.     

Artists in an Iron Cage? Artists’ Work in Performing Arts Institutions

This article discusses artists’ work in performing arts institutions in Norway. Many scholars describe Nordic performing arts institutions as slow-moving and heavy “art factories,” where artistic creativity is almost suffocated within bureaucratic “prisons.” The general problem that we raise in the article is whether this pessimistic picture of the relation between state control, market influence, and artistic work is relevant for studying the performing arts today. The study is primarily based upon twenty-seven qualitative interviews with informants in an institutional theatre and a symphony orchestra. We conclude that the actors in the Theatre are trapped—not so much within “a bureaucratic iron cage”—but rather within “an iron cage of charismatic leadership,” while the musicians in the Orchestra enjoy the relative freedom and democratic power of a rather soft bureaucratic organization.     

THE SUPREME COURTS POST-MIRANDA RULINGS: Impact on Local Prosecutors

Beginning in 1971, the Burger Court issued a series of rulings which chipped away at the Miranda v. Arizona ruling. This article analyzes the impact of this series of rulings on prosecuting attorneys from countries with a population of 100,000 or more. The results indicate that prosecutors perceive that the Court has changed the degree with which police must comply with Miranda and that prosecutors approve of this, but that prosecutors are not more likely to prosecute in cases where police committed alleged violations than they had been before 1971. This seems due to the fact that prosecutors take their cues more from local courts, which reportedly requires strict compliance with Miranda, than from the Supreme Court.