NCJ Number
27627
Journal
Montana Law Review Volume: 28 Issue: 1 Dated: (FALL 1966) Pages: 41-93
Date Published
1966
Length
52 pages
Annotation
THIS ARTICLE EXPLORES THE STATE OF THE LAW CONCERNING THE DISCRETION THAT MAY BE LEGALLY EXERCISED BY COUNTY PROSECUTORS, WHAT DISCRETION IS ACTUALLY EXERCISED, AND WHAT FACTORS INFLUENCE THE EXERCISE OF DISCRETION.
Abstract
THE AUTHOR COLLECTED DATA BY REVIEWING NUMEROUS CRIMINAL CASES FILED BY COUNTY PROSECUTORS IN 1964 AND BY SURVEYING PROSECUTORS BY QUESTIONNAIRE ABOUT THE EXERCISE OF THEIR DISCRETIONARY POWERS. FROM THIS DATA, HE CONCLUDED THAT PROSECUTORIAL DISCRETION IS INHERENT IN THE CRIMINAL PROCESS AT NEARLY EVERY STAGE. DISCRETION IS EXERCISED IN THE DECISION TO PROSECUTE, CHARGE SELECTION, RECOMMENDATION OF SENTENCE, PLEA NEGOTIATIONS, AND REQUESTS FOR DISMISSALS. IT IS NOTED THAT MONTANA COUNTY ATTORNEYS DO NOT CONSIDER THEIR DISCRETION UNBRIDLED. IN VARYING DEGREES, THEY FEEL CONTROLLED BY THE COURTS, THE ATTORNEY GENERAL, AND MOST SIGNIFICANTLY, BY PUBLIC PRESSURE. THE AUTHOR REVIEWS FOUR SANCTIONS THAT HAVE BEEN IMPOSED ON PROSECUTORS FOR ABUSE OF THEIR DISCRETION: REMOVAL FROM OFFICE, CRIMINAL PROSECUTION, DISBARRMENT, AND PRIVATE SUIT. HE CONCLUDES THAT THESE SANCTIONS HAVE BEEN INEFFECTIVE IN CONTROLLING DISCRETION EXCEPT IN THE MOST EXTREME INSTANCES, AND THAT THE EFFECT OF PUBLIC PRESSURE ON THE PROSECUTOR'S DISCRETIONARY ACTS SHOULD BE DECREASED. ACCORDINGLY, THE AUTHOR CONTENDS THAT A SYSTEM OF MORE CONSTANT, IMMEDIATE, AND EFFECTIVE CONTROLS SHOULD BE DEVISED TO PREVENT ABUSES OF DISCRETION. THESE CONTROLS MIGHT INCLUDE GREATER COURT PARTICIPATION IN THE GUILTY PLEA PROCESS AND BROADER COURT POWERS TO APPOINT SPECIAL PROSECUTORS WHERE PROSECUTORIAL INACTION IS UNJUSTIFIED. CENTRALIZATION OF COUNTY PROSECUTORS UNDER A STATE DEPARTMENT OF JUSTICE COULD FACILITATE SUPERVISION AND PROVIDE EXTRA ASSISTANCE. ADMINISTRATIVE REFORMS, SUCH AS HIGHER SALARIES AND FULL-TIME PROSECUTORS, WOULD ATTRACT MORE QUALIFIED ATTORNEYS TO THE COUNTY ATTORNEY'S OFFICES AND RESULT IN FEWER DISCRETIONARY ABUSES. APPOINTED RATHER THAN ELECTED PROSECUTORS WOULD BE LESS SUSCEPTABLE TO PUBLIC PRESSURE. THE AUTHOR ARGUES THAT IMPOSITION OF THESE CONTROLS AND REFORMS, WHILE RETAINING THE TRADITIONAL DISCRETIONARY POWERS OF THE PROSECUTOR, WOULD PROVIDE PROTECTION FROM ABUSES WITHOUT SACRIFICING THE FLEXIBILITY ESSENTIAL TO THE CRIMINAL JUSTICE SYSTEM. (AUTHOR ABSTRACT MODIFIED)