Prosecutorial Decisions Research Articles

'Are We Sure That He Knew That You Don't Want to Have Sex?': Discursive Constructions of the Suspect in Police Interviews with Rape Complainants.

Recent statistics reveal alarming flaws in the Criminal Justice System's (CJS) handling of rape cases, undermining the pursuit of justice for complainants seeking legal redress. This paper takes a novel approach to explore police rape stereotype use in interviews with rape complainants, utilising critical discourse analysis and conversation analysis and discursive psychology to understand and critique the balance of power within an interview and how this might impact attrition and prosecution decisions. Ten police interviews with rape complainants were analysed with several suspect discursive constructions present throughout, including the interviewer constructing the suspect as misunderstanding, the complainant as miscommunicating non-consent, or agentless and passive talk. A significant and original finding was the way constructions interacted with the spectrum of stranger-to-partner rapes. In stranger rape cases, passive language often obscures the suspect and emphasises the complainant's behaviour. Acquaintance rapes frequently involved misunderstandings centred on visible distress and mixed signals. Partner rapes highlighted issues around consent and coercion, with officers often ignorant of coercive control and domestic abuse. These findings align with Operation Bluestone Soteria (OSB); thus, the recommendations align with those made by OSB's Pillar One.

Changes in Prosecutorial Decision-Making in Response to a High-Profile Mass Shooting

Changes in Prosecutorial Decision-Making in Response to a High-Profile Mass Shooting

A Dynamic Theory of Prosecutorial Roles in Adversarial Trials

AbstractProsecutors in adversarial systems are simultaneously expected to be impartial ministers of justice and partisan advocates. Leaving this tension unaddressed can result in poor-quality prosecutorial decision-making. This article develops a novel “dynamic” framework for prosecutors to navigate between and prioritize these competing considerations, which can be used to understand, evaluate, and improve prosecutorial performance. Under this framework, the prioritization should depend on which function the prosecutor is exercising at any given time. The article then deploys primary data collected in Delhi, through court observation and interviews with judges, lawyers, victims, and victim-support persons, to exemplify and justify the framework.

Bias in prosecutorial decision making: Bridging focal concerns & group threat

PurposeTwo dominant theoretical approaches used to explain racial and ethnic disparities in criminal justice outcomes are focal concerns and group threat. This study tests hypotheses about disparities in prosecutors' indictment decisions drawn from these theories, as well as the liberation hypothesis. MethodsPropensity score matching is used to examine charging disparities between Arabs and Jews suspected of different property crimes in the Jerusalem district court from 2007 to 2018. ResultsHypotheses drawn from each of these perspectives are not supported. The pattern of disparities across different crime types is consistent with an explanation that bridges insights from focal concerns and group threat perspectives. ConclusionsOur study emphasizes the importance of the broader social context of the offense in understanding the threat perceptions tied to specific crimes and explaining ethnic gaps in prosecutorial decision making.

Corporate antitrust prosecutions: Prosecutorial decision making in the assessment of total monetary penalties

Corporate antitrust prosecutions: Prosecutorial decision making in the assessment of total monetary penalties

Bounded rationality of prosecutorial decision-making in corporate fraud violations

Purpose This study aims to analyze corporate mail and wire fraud penalties, using bounded rationality in decision-making and assessing internal and external influences on prosecutorial choices. Design/methodology/approach The study analyzed 467 cases from 1992 to 2019, using data from the Corporate Prosecution Registry of the University of Virginia School of Law and Duke University School of Law. It examined corporations facing mail and wire fraud charges and other fraud crimes. Multiple regression linked predictor variables to the dependent variable, total payment. Findings The study found that corporate penalties tend to be lower for financial institutions or corporations in countries with US free trade agreements. Conversely, penalties are higher when the company is a U.S. public company or filed in districts with more pending criminal cases. Originality/value This study’s originality lies in applying the bounded rationality model to assess corporate prosecutorial decisions, unveiling external factors’ influence on corporate penalties.

Effects of bounded rationality on prosecutorial decision making: Analysis of penalties on corporate fraud violators

Our study analyzes data from the Corporate Prosecution Registry of the University of Virginia School of Law and Duke University School of Law. This registry provides information on federal organizational prosecutions in the United States, including detailed information about every federal organizational prosecution since 2001, as well as deferred and non-prosecution agreements with organizations since 1990. We examine a subset of corporate violators, namely those who allegedly committed five types of fraud, namely, accounting fraud, mail fraud and wire fraud prosecutions, health care fraud, securities fraud, and tax fraud. We utilize the framework of bounded rationality of decision making to hypothesize that prosecutors are influenced by internal and external factors that affect the total penalties ultimately levied on corporate violators. Specifically, our results indicate that corporate penalties are significantly more likely to be lower when U.S. Department of Justice sections are involved in the prosecution and the company's country of incorporation has a Free Trade Agreement with the U.S. but significantly more likely to be higher when the violator is a U.S. public company.

Gender Role Attitudes and Prosecutorial Decision-Making in a Case of Intimate Partner Violence.

Intimate Partner Violence (IPV) is a pervasive public health crisis that impacts individuals across the gender spectrum. Traditionally, IPV is conceptualized through a gendered lens, with men as the perpetrators and women as the victims. The current study explored the association between perpetrator/victim sex, prosecutor gender role attitudes, and prosecutorial decision-making in a case of alleged IPV. We hypothesized that prosecutors with more traditional gender role attitudes would be more lenient, and this effect to be exacerbated in cases involving a female perpetrator. Criminal prosecutors across the United States (N = 94) completed the Male Role Norms Inventory-Revised and read case materials describing the alleged IPV between a heterosexual couple (e.g., arrest report, medical records). The victim/perpetrator sex was manipulated to involve either a female- (male victim) or male- (female victim) perpetrated IPV case. Results indicate that gender role attitudes were not associated with prosecutorial decision-making. However, prosecutors perceived the violence as more serious and the perpetrator as more likely to reoffend when the perpetrator was male; further, they attributed more blame to the female victim. An interaction between perpetrator sex and prosecutor gender role attitudes indicates those with more traditional beliefs were more likely to blame the female (rather than male) victim. These data suggest extralegal factors related to the perpetrator (i.e., perpetrator sex), rather than prosecutor individual differences (i.e., gender role attitudes), are associated with prosecutor discretionary decision-making. In tandem with real-world disparities in the prosecution of IPV based on perpetrator sex, the current research stresses the importance of exploring a diversity of factors that account for these observed differences.

A Decade of Decision Making: Prosecutorial Decision Making in Sexual Assault Cases

In the United States, it is estimated that fewer than 30% of sexual assaults are reported to law enforcement, less than 5% will result in an arrest, and approximately 3% will result in a felony conviction. The present study examines a census of sexual assault reports from 2012 to 2020 in a large police department in the Midwest region of the United States, considering only those cases presented to the district attorney’s office for consideration (n = 700). Victim characteristics, suspect characteristics, and incident characteristics were examined as relating to a prosecutor accepting a case for charges. Further, a series of “ideal victim” characteristics were identified and used to create an additive scale based on prior research. The most significant predictors of prosecutor acceptance in the full sample were a lack of “date rape” drugs, continued cooperation from the victim, the suspect having a prior arrest for sexual assault, and the assault being reported within 24 h of occurring. A separate model was conducted for only those cases with continued cooperation from the victim. The researchers discuss the implications of these significant factors and suggest training to change false perceptions of victims among criminal justice officials and to increase victim reporting/cooperation in cases of sexual assault.

Epistemic emotions in prosecutorial decision making

AbstractThe article examines epistemic emotions as part of the emotive‐cognitive processes of prosecutors’ knowledge seeking and decision making in preliminary investigation and court proceedings. Drawing on ethnographic fieldwork, interviews, and shadowing of prosecutors in Sweden, we show how emotions motivate and orient prosecutors’ inquiries and the fundamental role of the ‘certainty–doubt spiral’ for ‘doing objectivity’. In conclusion, we discuss the centrality of emotions for conscientious and well‐considered decisions in legal work. The study contributes to the field of law and emotion by exploring the epistemic quality of emotions, notably the certainty–doubt spiral, in legal work.

INDEPENDENCE OF THE PROSECUTOR IN CONDUCTING PROSECUTIONS VIEWED FROM THE UNITED COMMAND PRINCIPLE

The independence of the prosecution is a universal principle within the framework of realizing a just and impartial criminal justice system. The European Status of Justice states that the government should establish measures to guarantee the independence of the prosecutorial power. Prosecutors are required to submit to legal authority and not to political power. Therefore, this study aims to examine the practice of making prosecution decisions in the Indonesian Prosecutor’s Office. The qualitative study method was adopted with normative law, and data were collected through document study and interviews with Attorney officials. The results showed that the new prosecution independence arrangements aim to protect the Attorney General’s institution from the influence or intervention of other powers. However, prosecutors did not yet have individual independence in their status as judicial officials (magistrates). This is in contrast to the practice in European countries, such as the Netherlands, which guarantee institutional and individual independence. Due to the influence of the military in the Indonesian Attorney General’s office and a translation error, "een en ondeelbaar", which should be a legal standing, was mistranslated into the principle of command unity. Therefore, in making decisions/actions, prosecutors should report and seek approval from their superiors.

Racial bias in jury selection hurts mock jurors, not just defendants: Testing one potential intervention.

Prosecutors often use race as a basis for excluding Black jurors in cases with Black defendants. The current research tested whether this practice influences juror attitudes (Study 1). It also tested an intervention to prevent racially biased jury selection (Study 2). We predicted that participants exposed to the exclusion of Black prospective jurors would have more negative feelings compared with those who were not exposed to such exclusions (Study 1). We also predicted that participants taking on the role of a prosecutor would be more likely to exclude a Black (vs. White) prospective juror in a case with a Black defendant and that warnings against race-based decisions would result in elaborate race-neutral rationales for the exclusions (Study 2). In Study 1 (N = 228), participants witnessed a simulated jury selection process. For half of the participants, Black jurors were differentially excluded. In Study 2 (N = 298), participants selected between a Black and a White prospective juror for a case with a Black defendant. Exposure to race-based exclusions negatively impacted perceptions of fairness and emotional responses, especially for Black participants (Study 1). Participants were more likely to exclude a Black juror (vs. White juror) but gave race-neutral rationales for their decisions. The effect of race on juror selection was eliminated when participants were warned against using race as a basis for excluding jurors (Study 2). Race-motivated exclusions affect not only Black defendants, by depriving them of their right to a jury of their peers, but also the jurors who remain to deliberate. A warning could be a viable intervention for curbing the influence of race on prosecutorial decisions during jury selection. (PsycInfo Database Record (c) 2023 APA, all rights reserved).

Misdemeanor Prosecution

Abstract Communities across the United States are reconsidering the public safety benefits of prosecuting nonviolent misdemeanor offenses, yet there is little empirical evidence to inform policy in this area. We report the first estimates of the causal effects of misdemeanor prosecution on defendants’ subsequent criminal justice involvement. We leverage the as-if random assignment of nonviolent misdemeanor cases to assistant district attorneys (ADAs) who decide whether a case should be prosecuted in the Suffolk County District Attorney’s Office in Massachusetts. These ADAs vary in the average leniency of their prosecution decisions. We find that for the marginal defendant, nonprosecution of a nonviolent misdemeanor offense leads to a 53% reduction in the likelihood of a new criminal complaint and a 60% reduction in the number of new criminal complaints over the next two years. These local average treatment effects are largest for defendants without prior criminal records, suggesting that averting criminal record acquisition is an important mechanism driving our findings. We also present evidence that a recent policy change in Suffolk County imposing a presumption of nonprosecution for nonviolent misdemeanor offenses had similar beneficial effects, decreasing the likelihood of subsequent criminal justice involvement.

Professional identity, legitimacy and managerialism at the Crown Prosecution Service

AbstractTasked with enforcing criminal law, public prosecutors worldwide enjoy broad discretion. Existing literature on prosecutorial discretion and accountability tends to discuss the regulation of prosecutorial discretion or analyse the influence of the procedural environment in which public prosecutors operate. This paper focuses on occupational culture as an important factor affecting prosecutorial decisions. It draws particular attention to an understudied aspect of prosecutors’ professional identity: legitimacy and, specifically, self-legitimacy, ie the belief public prosecutors have in their own legitimacy to make decisions in individual cases. The paper presents research findings from direct observations and interviews which reveal a sense of a loss of self-legitimacy amongst Crown Prosecution Service (CPS) staff due to the constant monitoring of their decisions by colleagues and managers. This all-pervasive managerialism, paradoxically, undermines the very legitimacy (and, relatedly, transparency) which the CPS has had to work so hard to develop since its inception.

JUVENILE DIVERSION: DEVELOPMENTS IN SOUTH AFRICA AND THE NETHERLANDS

Juvenile justice in South Africa has undergone many changes in the last twenty years. However, in our opinion, one of the most important developments in South African juvenile justice in this period has been the idea of diverting the trials of young offenders away from criminal courts to appropriate alternative programs (Sloth-Nielsen “Reviewing the Prosecutorial Decision not to Divert – Case Discussion of M v The Senior Public Prosecutor, Randburg” 2001 De Jure 194). This development is the result of a number of events, amongst which are South Africa’s adoption of the United Nations Children’s Convention (United Nations Convention on theRights of the Child (1989)), and the inclusion of children’s rights in the South African Constitution in 1996. Juvenile diversion is an international trend. This note will highlight some of the local developments and will also illustrate some interesting similar developments in juvenile diversion in the Netherlands.

Discretionary Prosecutorial Decision-Making: Gender, Sexual Orientation, and Bias in Intimate Partner Violence

Prosecutors exercise substantial discretion within the criminal justice process, potentially allowing for discrepant treatment of criminal cases. The purpose of this research was to examine the association between prosecutorial implicit biases and victim gender and sexual orientation in an intimate partner violence (IPV) case. Participants, 201 prosecutors from across the United States, completed two Implicit Association Tests to measure implicit gender attitudes and implicit attitudes regarding lesbian, gay, bisexual, and queer individuals. Participants were randomly assigned to one of four conditions (opposite-sex couple/female victim, opposite-sex couple/male victim, same-sex couple/female victim, same-sex couple/male victim) and read a case file of an alleged IPV arrest. Consistent with our hypotheses, prosecutors were 65% more likely to prosecute under the severest criminal penalty when the victim was female or included an opposite-sex couple. However, we found no evidence that implicit biases related to prosecutorial decisions.

Prosecution Accountability and Judicial Review

This article examines the various ways that prosecution decisions can be challenged and, in particular, the extent to which prosecution decisions might be susceptible to judicial review. The focus is on the decision to commence or not to commence a prosecution. First considered is the extent to which that decision can be challenged pursuant to conventional criminal procedures. The availability of tort-based civil proceedings and the extent to which prosecution decisions are susceptible to judicial review are then considered. It is argued that providing adequate avenues to challenge prosecution decisions needs to be seen in the broader context of (a) the need to balance prosecutorial independence and prosecutorial accountability and (b) the separation of powers doctrine.

Prosecutorial Decision Making in Domestic Violence Cases: Are Prosecutors Holding Offenders Accountable?

Domestic violence (DV) continues is an ongoing costly issue for the criminal justice system, Research indicates the prosecutor's filing decision is important to keeping DV victims safe, but there is little research examining prosecutorial filing decisions in DV cases. This study used focal concerns as a theoretical framework to explore which legal and extra-legal factors impact prosecutorial filing decisions in DV cases. The study utilized data collected from 731 misdemeanor and felony DV cases from an urban County in Florida between January 2017 - December 2018. Two binomial logistic regression models were used to predict the likelihood a DV case would be filed on any charge, filed on a DV specific charge or not filed. Results showed some support for focal concerns but findings suggest that factors impacting this decision vary based upon case severity (i.e. misdemeanor, felony). A weapon present decreased the filing likelihood for misdemeanor cases but victim requests not to prosecute and a public attorney decreased filing likelihood for felonies. The prosecutor's decision to file charges is a powerful tool to keep victims safe and should be based on legal facts and risk of future harm, but here these factors had little to no impact on this decision.

Predictors of Prosecutorial Decisions in Reports of Child Sexual Abuse.

A retrospective examination of 500 child sexual abuse reports to prosecutor's offices analyzed case progress and predictors of attrition, including details about alleged perpetrator(s), victim(s), their families, and other case characteristics. Less than one in five cases proceeded to prosecution. For the full sample, we describe all outcomes and differentiate prosecutors' decisions to (a) intake/close, (b) investigate/close, or (c) prosecute; these stages comprise a 3-level dependent variable. Because it is important to understand which variables are associated with progress to each stage, we examined unique predictors of the decision to "investigate," and to "prosecute." Our multivariate analyses examine 325 cases with a perpetrator aged 16 and older. Caregiver support and perpetrator age were significant predictors across all outcome variables, while other factors were barriers to the "prosecute" decision only. Results highlight the complexities of case characteristics that are important at different stages of prosecutorial decision-making and inform future interventions.

Gender Favoritism among Criminal Prosecutors

Prosecutors enjoy wide discretion in the decisions they make but are largely unstudied by quantitative empirical scholars. This paper explores gender bias in prosecutorial decision-making. I find that male and female prosecutors exhibit small and statistically insignificant differences in their treatment of defendants overall but demonstrate relative leniency toward defendants of their own gender. Such favoritism at charging translates into a sentencing gap of roughly 5 months of incarceration for defendants who are paired with an own-gender prosecutor versus an opposite-gender prosecutor, which represents a roughly 8 percent reduction in sentence length at the mean. The estimates do not appear to be driven by differences in case assignments for male and female prosecutors.