Exercise Of Prosecutorial Discretion Research Articles

The Attorney General, Politics, and the Public Interest: Contributions to an Evolving Constitutional Convention

AbstractThe prosecutorial independence of the Attorney General (AG) is a firmly established constitutional convention in Canada, but it is also an evolving convention, subject to ongoing contestation and debate. This article is a contribution to that debate. It defends a normative constitutional framework wherein the AG’s authority to make final decisions in matters of criminal prosecution is balanced against a corresponding duty to consult with cabinet and the prime minister on the public interest implications of prosecutorial decisions when the circumstances warrant. Within this normative framework, respectful contestation and debate amongst ministers, the prime minister, and the AG in determining the public interest merits of prosecution is welcomed, even encouraged, and if conducted with the requisite integrity, objectivity, and transparency, it is regarded not as a threat but as a valuable check and balance on AG independence and an indispensable form of quality control on the exercise of prosecutorial discretion.

The Attorney General’s Exercise of Prosecutorial Discretion in Malaysia: A Critique of Scope, Limitation and Challenges

The dual role played by the Attorney General of Malaysia as the legal advisor for the government and the person who decides on whether criminals are prosecuted, raises the question whether he can discharge his duties impartially and objectively, especially when deciding whether to prosecute high ranking members of the government for crimes. This paper seeks to address the potential conflict that may arise from the existence of this dual role, is the scope of the prosecutorial discretion, the limits placed upon it by the law and whether the Attorney General can claim immunity in respect of the consequences of the exercise of his discretion. The paper comprises of doctrinal analysis on the scope of discretionary power of the Attorney General and through comparative analysis of several other jurisdictions, examines the trend and contemporary approach on the exercise of such power. It is found that the judiciary in the exercise of judicial review is keen on maintaining the status quo, despite attempts of more progressive approach. This paper provides some recommendations of the Attorney General’s prosecutorial role on a proper exercise of discretion, promoting transparency as decisions shrouded in secrecy diminished the standing of the Attorney General’s office.

Prosecutorial Discretion at the Special Court for Sierra Leone: A Critique

Principle 1 of the International Law Commission demands that any person who commits an act which constitutes a crime under international law is responsible and therefore liable to punishment. This is supported by various other international treaties, obligations, and also under customary international law. The mandate of the Special Court for Sierra Leone (The Special Court) rests with United Nations Security Council Resolution 1315(2000); to prosecute those who bear the greatest responsibility for serious international crimes committed during the country’s civil war, which lasted from 1991-2002. To be clear, there were many protagonists in the conflict. However, the Special Court, which lasted between 2002 and 2012, prosecuted only thirteen members from selected groups, who were alleged to have committed such offences. Although there was considerable evidence to have supported additional prosecutions from the other warring factions in the conflict. As it was the responsibility of the Prosecutor to select those who were to be prosecuted; was the prosecutorial discretion robust enough in the case selection of those that were prosecuted, or was it a case of selective enforcement, or was it even discriminatory whilst trying to achieve the Court’s mandate? This paper aims to evaluate the exercise of prosecutorial discretion at the Special Court, with a view to determining, whether the manner in which it was exercised may have led to the Prosecutor underachieving the Court’s mandate.

Prosecutorial Discretion and Judicial Review: An Analysis of Recent Canadian and South African Decisions

The question whether the functions performed by the prosecutor in the criminal justice system are subject to judicial scrutiny has been a matter for concern in common-law jurisdictions for quite some time. The courts in the Commonwealth generally agree that prosecutors must function independently; act fairly and responsibly in the interests of the public; and must be free from political interference. Their role in the administration of justice is to uphold the rule of law. Therefore, the exercise of prosecutorial discretion should ordinarily not be interfered with by the courts except in rare cases. However, the extent to which the courts, in respective Commonwealth jurisdictions, review prosecutorial discretions differs. A comparative study of the Canadian experience and the South African approach, where the judicial approaches to the review of prosecutorial discretion significantly differ, is a clear illustration. In Canada, the courts hardly interfere with, or review the manner in which the prosecutor performs his or her duties, except that prosecutorial discretion is not immune from all judicial oversight, since it is reviewable for abuse of process (see R v Anderson [2014] 2 SCR 167). In South Africa on the other hand, the exercise of the powers of the prosecutor and their ramifications are, like every exercise of public power, subject to the constitutional principles of legality and rationality. The recent judgments of the Full Bench of the Gauteng Division, Pretoria in Democratic Alliance v Acting National Director of Public Prosecutions 2016 (2) SACR 1 (GP) as affirmed by the Supreme Court of Appeal in Zuma v Democratic Alliance 2018 (1) SA 200 (SCA)—the so-called ‘spy-tape’ saga—are the latest illustrations of this approach.

Gender and Prosecutorial Discretion: An Empirical Assessment

Abstract This article contributes to our understanding of the role of gender in the exercise of prosecutorial discretion. We use administrative data from a prosecutor’s office in a large urban county to estimate the direct and interactive effects of defendant and prosecutor gender on accepting initial charges brought by law enforcement officials. After implementing coarsened exact matching, Probit regression results suggest that prosecutors, on average, are more likely to accept charges against male defendants. In scenarios where gender is salient to decision making (i.e., in domestic violence and sexual assault cases), we find mixed evidence regarding whether female prosecutors make decisions differently than male prosecutors, as predicted by the theory of representative bureaucracy. Finally, we find that female prosecutors with higher levels of prosecutorial experience are more likely to accept domestic violence and sexual assault charges against male defendants than both their male counterparts and female prosecutors with limited experience. Our results suggest that female prosecutors reserve their discretion for complex scenarios where organizational routines are less set in stone. Furthermore, female prosecutors with more experience may be more able to identify these scenarios, and are thus more likely to actively represent.

Prosecutorial Discretion Is A Shield Not A Sword

The Public Prosecutor plays an important gatekeeping role in the administration of criminal through the exercise of prosecutorial discretion. This discretionary power allows the prosecutor to decide whether a person should be charged, and if so with what offence. The prosecutor may divert a suspect away from the criminal process by imposing certain conditions, secure guilty pleas from the offender through negotiation, and discontinue prosecutions. To prevent the abuse of this power by the Government, the responsibility for the initiation, continuation and disposition of criminal matters is vested in the Attorney-General as Public Prosecutor, who is expected to act independently of the Government in making prosecutorial decisions. More than that, the Public Prosecutor is expected to act as a minister of justice and guardian of the public interest. This article argues that prosecutorial discretion is meant to be used as a shield against political interference; to that end prosecutorial independence is essential. However, there is a risk that the Executive may use prosecutorial discretion as a cover for political interference by hiding behind a veneer of prosecutorial independence in order to influence a prosecutorial decision without being held democratically accountable. Equally, there is a risk that prosecutorial discretion may be used as a sword when the Government deliberately, or sometimes inadvertently, co-opts it as a tool to enhance legislative or executive power over criminal matters, or to undermine individual rights.

Comment on “‘A Million Dollars in Free Advertising’: Politics and Sex Offense Prosecution in the Wake of Duke Lacrosse”

Comment on “‘A Million Dollars in Free Advertising’: Politics and Sex Offense Prosecution in the Wake of Duke Lacrosse”

From a 'Two Thrust Approach' to a 'Two Sword One Thrust Strategy' to Combat Criminal Corruption: Government Enforcement of Compliance and Oversight by Sovereign Investors

The commitment of governments, international organizations and enterprises to combatting corruption appears to have intensified in recent years. The efforts of these institutions appear centered on a “Two Thrust Approach,” consisting of the simultaneous application of the development and enforcement of public legal regimes and the implementation and operation of private compliance systems. This system dies not produce regulatory coherence between the law making by the government and the compliance systems created by business are not coordinated well. However, recent regulatory and compliance trends suggest the emergence of a “Two Swords, On Thrust Strategy” as a supplemental approach to the enforcement of anti-corruption rules and norms. The Two Swords-One Thrust Strategy combines the power of state officials to exercise discretion in managing anti-corruption laws and the authority of financial institutions to control the access of enterprises to their investment universe or to exercise their shareholder authority to influence corporate behavior. The essay examines the possibility of developing this strategy. To that end, the essay first considers the emerging efforts to institutionalize rules for the exercise of prosecutorial discretion in criminal investigations to compel corporate governance reform. It then considers the “second sword”, the use of market power by sovereign investors to influence compliance oriented corporate governance reform that parallels those advanced by prosecutors. The essay ends by suggesting the utility of this strategy for Chinese anti-corruption efforts by considering the possibility of coordinating the work of the procuratorate with the financial power of Chinese sovereign wealth finds in the exercise of their shareholder power and their power to limit access to investment markets.

Towards the ‘Golden Hour’?

Over the years, the conduct of preliminary examinations has gained increasing importance at the International Criminal Court (ICC). One notable aspect in this area is the hugely diverging length of such examinations, ranging from one week for the situation in Libya to 12 years (and rising) for the situation in Colombia. This article critically interrogates the repeated claim of the Prosecutor that the absence of any provisions regulating the length of preliminary examinations was a deliberate decision of the drafters of the Rome Statute, leaving her with unfettered discretion in that area. Instead, it is suggested that the exercise of prosecutorial discretion in prioritizing preliminary examinations is legally limited through the obligation to ensure effective investigations, demanding reasonably swift responses because evidence vanishes over time — witnesses disappear, memories fade, and data gets lost (the ‘golden hour’ principle). Furthermore, the conduct of preliminary examinations is also limited through the legal and policy commitment to impartiality, including the appearance of impartiality. A robust debate about a structured and transparent process of prioritization at the preliminary examination stage is thus overdue. It is proposed that the Prosecutor should introduce a policy commitment to conclude preliminary examinations within a defined time limit. Such a policy would be an important step towards a more structured method of situation selection, and would reduce the possibility that decision-making processes in more contentious situations are postponed for obscure reasons.

Permitting Voluntary Euthanasia and Assisted Suicide: Law Reform Pathways for Common Law Jurisdictions

End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences with law reform in Canada. Through its bird’s eye view, it highlights the remarkable number and variable nature of past attempts at law reform and suggests a shifting tide. It debunks some common myths that have either limited or stymied reform in the past. Finally, it illuminates jurisdictional similarities and differences and lessons learned by those who have gone before so as to inform choices about pathways to pursue for those who will seek to advance a law reform agenda in the future.

Permitting Voluntary Euthanasia and Assisted Suicide: Law Reform Pathways for Common Law Jurisdictions

<p><em><span style="font-family: Times New Roman; font-size: medium;">End of life law and policy reform is the subject of much discussion around the world. This paper explores the pathways to permissive legal regimes that have been tried in various common law jurisdictions. These include legislation, prosecutorial charging guidelines, court challenges, jury nullification, the exercise of prosecutorial discretion in the absence of offence-specific charging guidelines, and the exercise of judicial discretion in sentencing. In this paper, I describe these pathways as taken (or attempted) in five common law jurisdictions (USA, UK, Australia, New Zealand, and Canada) and reflect briefly on lessons that can be drawn from the recent experiences with law reform in Canada. Through its bird’s eye view, it highlights the remarkable number and variable nature of past attempts at law reform and suggests a shifting tide. It debunks some common myths that have either limited or stymied reform in the past. Finally, it illuminates jurisdictional similarities and differences and lessons learned by those who have gone before so as to inform choices about pathways to pursue for those who will seek to advance a law reform agenda in the future.</span></em></p>

Two for One: The Ethical Pursuit of Justice in the Military, and Battlefield Success, Through Joint Prosecutorial Decisions

This Article outlines a reasoned alternative to recent legislative proposals regarding the exercise of prosecutorial discretion in the military. It proposes requiring that commanders and their military lawyers jointly make all prosecutorial decisions. Elevating the staff judge advocate to an equal role in prosecutorial decision-making emphasizes and promotes justice and fairness, and formalizes what typically already occurs in courts-martial decision-making. Simultaneously, this approach preserves a wide swath of the commander’s authority to determine appropriate responses to service member misconduct, including criminal acts. Such preservation is necessary to ensure that commanders maintain their essential responsibility and accountability for good order and discipline in their units, given both good order and discipline’s vital link to battlefield success and the military’s comprehensive reliance upon a commander-centric organizational and managerial model. This Article insists that such joint prosecutorial decision-making be complemented by a robust set of ethical guidelines as well as transparency initiatives, heretofore both lacking in the military justice system, to govern the appropriate criminal prosecution and administrative discipline of service-members, in addition to rigorous training regarding the same.

Is Judge Hanen's Smackdown of Executive Action on Immigration 'Narrowly Crafted'?

In a recent essay in the Wall Street Journal, Professor Michael McConnell argues that Judge Andrew Hanen’s February 2015 opinion and order blocking some of the Obama administration’s recent executive actions on immigration should not be understood as questioning the executive branch's authority to exercise "prosecutorial discretion," but rather as questioning the extension of "affirmative benefits" to recipients of deferred action under those initiatives. According to Professor McConnell, Judge Hanen’s opinion “carefully lays out the legal case against the program” and ultimately concludes that "prosecutorial discretion is limited to nonenforcement and doesn’t entitle the executive branch to grant affirmative benefits such as work permits and welfare without statutory authority and notice-and-comment rule-making." Such "benefits," he asserts, have "never been part of prosecutorial discretion." On that basis, McConnell concludes that Judge Hanen “narrowly crafted [his] order not to touch on prosecutorial discretion” and that the decree therefore does not interfere with executive discretion to set enforcement priorities.In this essay, I critically assess these claims. McConnell is entirely correct that Judge Hanen at least professes to preserve the executive branch’s ability to establish enforcement priorities and exercise prosecutorial discretion. And it is also true that Judge Hanen exhibits considerable ire over the prospect of "award[ing] … benefits to otherwise removable aliens." However, contrary to McConnell's suggestion, Judge Hanen’s opinion is remarkably sweeping in its tenor and its potential significance. Ultimately, the ruling does not turn on any sort of distinction between the exercise of prosecutorial discretion, on the one hand, and the extension of "affirmative benefits," on the other.

The Domestic Effort in the Global Fight Against Impunity: Exercising Prosecutorial Discretion for War Crimes, Crimes Against Humanity and Genocide

In the global fight against impunity for war crimes, crimes against humanity and genocide, the capacity to prosecute individuals rests in the hands of domestic criminal or special prosecutors. While international prosecutions of core crimes are an important element of ensuring there is no safe haven for war criminals, pragmatic considerations of jurisdiction ensure that domestic prosecutions will remain highly relevant. This paper examines the influence of the global effort to prosecute core crimes on the exercise of prosecutorial discretion in Canada. It asks whether the principle of complimentarity does or ought to have an impact on the exercise of prosecutorial discretion in Canada. It concludes that the exercise of prosecutorial discretion must be more transparent and accountable to effectively contribute to the global fight against impunity.

Seek Justice, Not Just Deportation: How to Improve Prosecutorial Discretion in Immigration Law

Bipartisan politics has prevented meaningful reform to a system in dire need of solutions: Immigration. Meanwhile there are eleven million noncitizens with no valid immigration status who currently reside in the United States and the Department of Homeland Security (DHS) does not have the necessary resources to effect their removal. DHS does have the authority through prosecutorial discretion to prioritize these cases and provide relief to individuals with compelling circumstances that warrant humanitarian consideration; nonetheless, DHS’s exercise of prosecutorial discretion is underutilized, inconsistently applied and lacks transparency. This Article suggests a remedy – that the immigration prosecutor’s role should redefined to be one more akin to criminal prosecutors with a concomitant obligation to seek justice. Others have argued that DHS prosecutorial discretion should be subject to notice and comment rulemaking and a presumption of judicial review. However, if prosecutorial discretion is to remain a solidly executive branch prerogative to counter legislation painted with too broad a brush (a defect of almost all legislation) and a mechanism to prioritize individuals for deportation, such as violent repeat criminal offenders, it should be shielded from rulemaking and a presumption of judicial review.While immigration prosecutors are trained to support granting relief in cases where the evidence and law support a grant of relief, they do not see their role as separate from DHS agents and adjudicators, and as such do not see it as their role to seek justice. This Article contributes to the ongoing scholarship and dialogue calling for heightened ethical obligations, guidelines and principles for attorneys appearing before the Executive Office for Immigration Review (EOIR), to meet the challenges of practicing immigration law, while promoting efficiency and fairness in an effort to restore confidence and justice to a system subject to much condemnation.

Political Considerations in Prosecutorial Discretion at the International Criminal Court

The International Criminal Court (icc) sits at the perfect crossroad of law and politics. As a primarily consent-based legal system, the icc is only effective to the extent that it has the political support from states who want to see it succeed in its mission to end impunity for the most serious crimes of concern to the international community. Despite this, the Prosecutor’s interpretation of the ‘interests of justice’ criterion limits the extent to which the Prosecutor can consider the political ramifications of their actions. This article argues that the Prosecutor has legal grounds to consider politics in their analysis of whether proceeding with an investigation or prosecution would not be in the ‘interests of justice’. This article also argues that soft power theory can be used to overcome arguments that politics should not be considered in the exercise of prosecutorial discretion, due to the consent-based nature of the icc regime.

The Case of Lauris Kaplinski: A Guide to a Semiotic Reading of Incitement of Hatred in Modern Criminal Justice

AbstractCriminal justice is the area of law where we are closest to an overview of the semiotic processes through a succession of organizational contexts. We start with the first call to the police and conclude with the criminal trial or appeal. The main stages in the process may be characterized as (police) investigation, the exercise of prosecutorial discretion by public officials, and the trial. The attention of legal philosophers and semioticians alike has been directed primarily toward the last. However, it is important to draw attention also to the earlier stages, and to the possibilities that exist of fitting them within a single semiotic framework of analysis.

The Exercise of Prosecutorial Discretion at the International Criminal Court

The paper examines two areas where the Prosecutor of the International Criminal Court exercises discretion: selection of situations and selection of cases. The aim is to examine each of them from a three-fold perspective: firstly, identify the risks arising from broad discretionary powers; secondly, assess the capacity of the present oversight mechanisms to address those risks; and thirdly, suggest possible ways of improving the Prosecutor’s accountability.

NATO's Intervention in Kosovo and the Decision of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia Not to Investigate: An Abusive Exercise of Prosecutorial Discretion

NATO's Intervention in Kosovo and the Decision of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia Not to Investigate: An Abusive Exercise of Prosecutorial Discretion

Reframing the Right: Using Theories of Intangible Property to Target Honest Services Fraud After Skilling

Few federal criminal statutes have been as widely charged --- and widely criticized --- as the honest services statute, 18 U.S.C. § 1346. Primarily, this is because federal prosecutors have used the statute to charge corrupt officials with mail or wire fraud for denying citizens the intangible right to their impartial services, regardless of whether those citizens suffered any financial or proprietary loss --- an element typically required under the traditional mail and wire fraud statutes. Recently, in Skilling v. United States, the Supreme Court dealt a blow to the honest services theory when it interpreted § 1346 to reach only bribery or kickback schemes. Scholars and commentators predict the decision will mark the end of federal prosecutions for more inchoate forms of fraud, such as undisclosed self-dealing and hidden conflicts of interest. Fearing as much, members of Congress have proposed legislation to criminalize undisclosed self-dealing expressly and thereby retain the full anti-corruption enforcement power of the mail and wire fraud statutes. In response, this Note argues that initial reactions to Skilling have overstated the extent to which federal prosecutors are now hindered in their ability to prosecute honest services misconduct. Just as they have done for decades, prosecutors can and should continue to target honest services misconduct using the traditional mail and wire fraud statutes, 18 U.S.C. §§ 1341 and 1343, by reframing the victim’s right as an intangible property right. This Note provides a framework for how prosecutors can do so while largely replicating the sweep and targets of pre-Skilling § 1346 honest services prosecutions and concludes that such an exercise of prosecutorial discretion is both appropriate and desirable.