Prosecutorial Function Research Articles

Death penalty mitigation and cult membership: The case of the Kirtland killings

When cult activities precipitate violence against others, the interface of religious belief and practice, and law becomes complex. Personal and group psychological factors can assume importance not only to explain the crimes, but also in the processing of cases, particularly where a death penalty/mitigation trial is involved. While destructive cult membership has not been accepted in the legal system as a basis for an insanity plea, mitigation from the death penalty or other reduced responsibility outcomes can be justified and was effective in defence of Kirtland cult members. Outcomes in the Kirtland case reflected statutory requirements and procedural operations in complex constellations with roughly proportionate results. The paper details specifics of the case, defense strategies, prosecutorial functions, and religious and psychological underpinnings which led into acts for which neither religious freedom nor psychological disturbance could exempt from Penalty.

The Prosecutor Constrained by His Environment: A New Look at Discretionary Justice in the United States

The broad discretionary power of the American prosecutor subjects the office to criticism and enshrouds the prosecutorial function in controversy. However, the criticism usually is overbroad and lacks factual support. Is a first offender convicted of aggravated assault treated differently in Brooklyn, New York, than in New Orleans, Louisiana? Is a shoplifting suspect found with a gun in her purse treated the same in Boulder, Colorado, as in Detroit, Michigan? Such questions have gone unanswered and, indeed, unasked, by any comprehensive survey of prosecutorial discretion in America. This study examines the spectrum of state prosecutorial styles in America's urban areas. Our purpose is to identify those differences which affect the uniformity, the quality, and the equality of justice administered by local prosecutors. In order to examine and analyze policy and the dimensions of uniformity and consistency in prosecutorial decisionmaking, ten geographically dispersed and otherwise diverse, large urban prosecutors' offices participated in this study.' This Article outlines some findings and con-

Progress and Prosecution

Possessing awesome and almost unlimited discretionary powers, the district attorney is the most important figure in America's modern system of criminal justice administration. These powers stem primarily from the unique fact that the public prosecutor exists in a system which was initially premised on a common law concept of private prosecution. The discretion involved in charging and plea-bargaining decisions exemplifies the power granted a civil law official to administer a common law jurisprudence. The value of a return to private prosecution as a control upon unfettered prosecutorial discretion is explored, as well as the suggestion of increased internal guidelines for the exercise of the prosecution function.

The Discretionary Powers of the Prosecuting Attorney in West Germany

prosecuting attorney in the Federal Republic of Germany has by no means the same degree of freedom in the exercise of discretion as belongs to his American counterpart. difference arises above all from historical reasons. About the middle of the 19th century the office of prosecuting attorney (Staatsanwaltschaft) was introduced into the states of the German Federation following the prototype of the French procureur du roi. purpose of the new institution was first and foremost to replace by the accusatorial process the old inquisitorial procedure, in which the roles of prosecutor and decisionmaker were united in one and the same person-namely, the judge. Indeed, it was expressly stated by the first German National Assembly of 1848 to be one of the fundamental rights of the German people that: criminal cases the accusatorial process shall be used. However, it was felt undesirable to turn the power to prosecute a complaint over to either the police or the injured party. On the one hand the former stood too much in the shadow of the authoritarian state that people had wanted to discard in the liberal revolution of 1848. fear prevailed that the police, if placed in the position of prosecuting agency, would assert too strongly the state's desire to exercise power, and would not subject themselves sufficiently to the strict observation of law which people wanted in criminal proceedings. aggrieved private party on the other hand appeared similarly unsuitable to perform the prosecutorial function. Here the concern was that the accustomed thoroughness of criminal justice under the inquisitorial system, which, after all, had preserved law and order under the absolute state not badly, would be lost under a purely private system of presenting the prosecution's case. Thus the mid-nineteenth century reform movement in criminal procedure created the office of prosecuting attorney as an institution to take over the function of prosecution independent of the court itself, but which at the same time could preserve the zealousness of the prosecution. As in France, the primary function of the German state's attorney's office is initiating criminal prosecution. Rules of Criminal Procedure' state: The initiation of judicial investigation is conditioned upon the filing of a criminal complaint. In immediate juxtaposition to