Prosecutorial Discretion Research Articles

The Evolving Role of Prosecution in Pakistan's Criminal Justice System: A Comparative Analysis with India

The purpose of this research is to investigate the function of prosecution within the framework of Pakistan's criminal justice system as seen through the lens of India. Through the use of historical and doctrinal research methodologies, the examination dives into the development of prosecutorial functions in both nations. Within the scope of this study, a comparison and contrast of the legislative frameworks that control the prosecutorial function is carried out. Particular attention is paid to important aspects such as prosecutorial discretion, pre-trial investigation, and trial advocacy. The purpose of this research is to investigate the ways in which the courts in Pakistan and India have interpreted the powers and restrictions of the prosecutor by analyzing significant cases. This comparative technique allows the investigation to identify both commonalities, which are a result of a shared colonial past, and differences, which are a result of separate legal processes. The research provides an in-depth analysis of the efficiency of the prosecution process in each nation, stressing both the positive and negative aspects of the system as well as prospective areas for improvement. The findings of this study present suggestions for enhancing the prosecutorial position within Pakistan's criminal justice system. These recommendations are derived from the Indian experience, which the research draws upon. One of the goals of this research is to make a contribution to the continuing conversations that are taking place about how to assure a more strong and efficient prosecutorial role, which would eventually result in a criminal justice system in Pakistan that is more effective and just.

APPLYING THE ATTORNEY GENERALS PRINCIPLE OF OPPORTUNITY IN ECONOMIC CRIMES: A STUDY ON DIGNIFIED JUSTICE THEORY FOR NATIONAL WELFARE

The concept of the oportunitas principle, originating from the now-obsolete Article 8 of Law No. 15 of 1961, has endured through subsequent legal frameworks in Indonesia. This principle has evolved to grant the Attorney General, the highest Public Prosecutor, exclusive authority for its implementation, aligning with the current Prosecution Law and the guidelines of the Criminal Procedure Code. The oportunitas principle allows the Attorney General to refrain from prosecuting certain criminal cases to safeguard the public interest, with a formal decision document issued to ensure legal certainty and emphasize the prohibition of future prosecution in cases dismissed in favor of the public, particularly regarding economic crimes that impact the national economy. Harmonizing this principle with the evolving legal landscape reflects a delicate balance between societal needs and legal frameworks, helping to prevent the misuse of power. The dynamic nature of the oportunitas principle underscores its vital role in the Indonesian legal system, providing a nuanced perspective on the intersection of justice, public interest, and prosecutorial discretion.

Emerging models of de facto drug policy reforms in the United States

BackgroundHealth and human rights organizations have endorsed drug decriminalization to promote public health-oriented approaches to substance use. In the US, policymakers have begun to pursue this via prosecutorial discretion—or the decision by a prosecutor to decline criminal charges for drug possession in their jurisdiction. This study characterizes drivers of adoption, policy design and implementation processes, and barriers to impact and sustainability of this approach to inform evolving policy efforts promoting the health of people who use drugs (PWUD). MethodsWe conducted n=22 key informant interviews with policymakers and national policy experts representing 13 jurisdictions implementing de facto drug policy reforms. Analyses were informed by the Exploration, Preparation, Implementation and Sustainment (EPIS) framework and analyzed using a hybrid inductive-deductive approach. ResultsDrivers of policy adoption included racial inequities, perceived failures of criminalization, and desires to prioritize violent crime given resource constraints. Three distinct policy typologies are described with varying conditions for eligibility, linkage to services, and policy transparency and dissemination. Public misinformation, police resistance and political opposition were seen as threats to sustainability. ConclusionsGiven evidence that criminalization amplifies drug-related harms, many policymakers are adopting de facto drug policy reforms in the absence of formal legislation. This is the first study to systematically describe relevant implementation processes and emerging policy models. Findings have implications for designing rigorous evaluations on health outcomes and informing sustainable evidence-based policies to promote health and racial equity of PWUD in the US.

Framing and prosecutorial discretion: evidence from Brazil

AbstractPrior studies in the United States argue that the discretionary decisions of federal prosecutors regarding which issues to prioritize are shaped by the politicians who appoint them, while studies on state prosecutors emphasize the role of press coverage and public opinion. However, these studies leave untheorized whether prosecutors’ discretionary decisions are also affected by how their peers frame issues within and beyond prosecution offices. Building on the scholarship of collective action frames, this study develops a framework to explain how prosecutors’ framing work affects their colleagues’ decisions about which issues to focus on. I draw on the case of Brazil, where federal prosecutors focused on crime-fighting and human rights, but in the mid-2010s switched focus to corruption following a large-scale investigation called Lava Jato. I compare Lava Jato with two similarly large investigations that failed to transform corruption into the dominant issue within the Public Prosecutor’s Office. Drawing on 131 original interviews, I show how federal prosecutors’ framing work can persuade their colleagues to focus on the same issue through two stages: (1) conceptualization of versatile frames that speak to problems a variety of issues prosecutors care about and (2) diffusion of frames through professional meetings – providing roadmaps for how other prosecutors can implement the new frame – and to the press, increasing public attention.

Balancing Accountability and Independence: Prosecutorial Discretion in the United States and Italy

Balancing Accountability and Independence: Prosecutorial Discretion in the United States and Italy

Analisis Rechtsvacuum dalam Hukum Acara Pidana Indonesia: Penerapan Penghentian Penuntutan Berdasarkan Keadilan Restoratif

Within the context of criminal procedural law in Indonesia, the Criminal Procedure Code (often referred to by its Indonesian acronym, KUHAP) serves as the primary normative foundation governing the prosecution process. While the KUHAP intrinsically emphasizes a retributive justice paradigm, the global legal thought trend is currently shifting towards restorative justice (RJ). A crucial element in the KUHAP that warrants further scrutiny in this context is the prosecutorial discretion concerning the discontinuation of prosecutions. This research zeroes in on the analysis of the legal void or rechtsvacuüm in relation to RJ within the KUHAP, encompassing a comparative study with RJ models applied in various jurisdictions, such as the United States, the Netherlands, Japan, and Germany. The primary objective is to identify aspects of the KUHAP, especially those related to prosecutorial discretion, that have the potential to be harmonized with RJ principles, thereby supporting the restoration of relationships among offenders, victims, and the community. The findings from this analysis are hoped to inspire a more adaptive and inclusive reform of the criminal justice system in Indonesia. As recommendations, this research suggests the formulation of more explicit regulations, enhancement of the capacity of law enforcement officers through education and training, and collaboration with countries that have a proven track record in implementing RJ.

Twenty Years After Krieger v Law Society of Alberta: Law Society Discipline of Crown Prosecutors and Government Lawyers

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly extraprofessional misconduct. Further research remains necessary on the patterns and incentives underlying law society discipline of Crown prosecutors and government lawyers. Nonetheless, the relative rarity of disciplinary proceedings involving Crown prosecutors and government lawyers does not necessarily mean that law societies are neglecting their statutory mandate as it applies to those lawyers. At the same time, law societies may indeed be overly reliant not only on internal discipline of these lawyers by governments as their employers, but also on criminal proceedings as prompts for investigation and discipline.

Where Have the Guardians Gone? Law Enforcement and the Politics of Supranational Forbearance in the European Union

abstract: Why would a supranational law enforcer suddenly refrain from wielding its powers? The authors theorize the supranational politics of forbearance—the deliberate underenforcement of the law—and explain how they arise from cross-pressures between prosecutorial discretion and intergovernmental policy-making. The article then traces why an exemplary supranational enforcer—the European Commission—became reluctant to launch infringements against European Union member states. While the Commission's policy-making role as engine of integration has been controversial, its prosecutorial role as guardian of the Treaties has been viewed as less contentious. Yet after 2004, infringements launched by the Commission plummeted. The authors demonstrate that the Commission's political leadership grew alarmed that aggressive enforcement was eroding intergovernmental support for its policy agenda. By reining in the bureaucrats managing enforcement and embracing conciliatory dialogues with governments, the Commission sacrificed its role as guardian of the Treaties to safeguard its role as engine of integration. The article's findings highlight the consequences of politicizing international institutions and the tradeoffs facing executives double-hatting as prosecutors and policymakers.

Justice in conflict: Principle of complementarity or principle of competition?

The establishment of a permanent international criminal court was a necessity and the fear of it infringing on a state's sovereignty was real and ever present. As a result of this fear the International Criminal Court could not be awarded primary jurisdiction, and a compromise had to be reached in which it would operate under a regime of complementarity. This article focuses on the Simone Gbagbo case, as the first woman to be charged by the Court, with the object of nuancing the principle of complementarity in the various stages of an international criminal trial and the extent to which it portrays the tension of state sovereignty, tracing it from its infant historical or rudimentary practices to the current practice and making the necessary recommendations. All of this will be done by contextualising it all within the Cote d'lvoire situation, particularly as it relates to complementarity. The article makes recommendations that focus on how and why the lCC should avoid seeking to dictate and impose its prosecutorial strategy on the domestic officials so as to avoid a crisis of its legitimacy being questioned, and the state's refusal to cooperate with the Court. lt concludes with the caution that when the practices of the lCC and its Prosecutor make charging decisions for the state and embrace undermining the prosecutorial discretion of the domestic authorities, then the principle of complementarity will have been officially decimated and the principle of complementarity officially birthed.

Determinants of prosecuting cases about driving while intoxicated in China: an empirical case law analysis

ABSTRACT This research examines the factors on whether cases of driving while intoxicated are prosecuted in China by using 21,729 prosecution documents promulgated between 1 May 2017 and 31 December 2021. The results indicate significant regional differences in Prosecutors’ discretion when handling DWI cases. Prosecutors focused heavily on the blood alcohol content, neglecting qualitative factors such as periods of drunk driving and vehicle type. Empirical analysis suggests that aggravating circumstances were given great importance, whereas mitigating circumstances were disregarded. The results show that Chinese prosecutors tended to handle DWI cases severely and were reluctant to use their discretion. Two reform recommendations are given: (1) unifying enforcement standards through judicial interpretation of documents; (2) adjusting litigation procedures to ensure the reasonable exercise of prosecutorial discretion.

"Prosecutorial Discretion: An Imperative for Effective Prosecution in the Punjab Criminal Prosecution Service"

In a welfare state, the necessity for a certain level of discretion is widely acknowledged. Discretion plays a crucial role in law enforcement practices and is essential for the effective administration of justice. Within international Criminal Justice Systems, prosecutors have a pivotal responsibility in upholding the rule of law. Given their position within the executive branch, prosecutorial discretion becomes imperative. It is vital to observe that discretion itself is not inherently damaging; however, unchecked and absolute discretion can lead to adverse outcomes. The goal should not be the elimination of discretion, but rather its structured implementation. Within the realm of the criminal justice system, where both the law enforcement agencies and the court possess considerable discretion in pursuit of justice, it follows that the prosecution should also possess a degree of discretion. Without equipping the prosecution with essential discretionary tools, the Punjab Criminal Prosecution Service would be unable to effectively fulfill its role in criminal justice system. Consequently, the time has come to empower the prosecution with the necessary discretion it requires, especially the discretion to decide whether to prosecute or not which stands as a vital prerogative that prosecutors must possess to uphold the justice.

The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog

The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as: Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes. The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts. The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems. The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets. The absence of a statute of limitations for civil immigration offenses. Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute. The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ). The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS. A past record of temporary judge reassignments and government shutdowns. The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.

Racial Disparities in Drug Arrest Before and After De Facto Decriminalization in Baltimore

To mitigate the harms of arrest and incarceration on health and racial equity, jurisdictions are increasingly enacting reforms to decriminalize drug possession via prosecutorial discretion (de facto). Impacts on health outcomes rely on whether this policy can reduce exposure to the carceral system among people who use drugs (PWUD); however, data evaluating effects on arrest are lacking. This study explores possible impacts of Baltimore City's enactment of de facto decriminalization on arrests by race. Police and court records were used to explore possible impacts of Baltimore City's de facto decriminalization on street arrests and ("processed") arrests advancing through the courts among PWUD. Interrupted time series models were used to compare pre-policy (January 2018-March 2020) to post-policy trends (April 2020-December 2021) in arrests for possession of drugs/paraphernalia and estimate racial disparities in street arrests (Black vs other races). Analyses were performed February-May, 2022. The policy was associated with a significant and immediate decline in street and processed arrests for possession which was not seen for other crime categories. While declines were concentrated in the Black community, disparities in arresting persisted after the policy. De facto decriminalization may be a promising strategy to reduce exposure to the carceral system, an established risk factor for overdose and other drug-related sequalae and driver of racial disparities in the US. Further research is needed to elucidate drivers of persisting racial disparities and disentangle policy effects from pandemic-related closures.

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.

Prosecutorial Discretion: A Theoretical and Experimental Investigation

Prosecutorial Discretion: A Theoretical and Experimental Investigation

Priya Urs, Gravity at the International Criminal Court: Admissibility and Prosecutorial Discretion, Oxford, Oxford University Press, 2024

Priya Urs, Gravity at the International Criminal Court: Admissibility and Prosecutorial Discretion, Oxford, Oxford University Press, 2024

Prosecutorial Discretion for Self-Managed Abortion Helpers.

Elected prosecutors have pledged not to enforce abortion laws, in response to state-level abortion bans. For their pledges to be meaningful, prosecutors must exercise their discretion in cases of individuals who face legal risk, including people who help others self-manage their abortions. With a harm-reduction approach to improving abortion access, prosecutors should aim to reduce abortion helpers' involvement with the criminal justice system.

An Exploration of Prosecutorial Discretion in Plea Bargaining in Philadelphia

An Exploration of Prosecutorial Discretion in Plea Bargaining in Philadelphia

Judging prosecutors: Public support for prosecutorial discretion

Prosecutors have immense discretion to determine which offenses to charge, which cases to take to trial, and which sentences to recommend. Yet, even though many of the prosecutors who exercise this discretion over important crimes must face the electorate to keep their jobs, we know little about how the use of this discretion affects prosecutors’ electoral fortunes. Drawing on two experiments embedded in a nationally representative survey, we demonstrate that the public is more supportive of prosecutors who issue lenient sentences for low-level crimes. The results have important implications for criminal justice reform inasmuch as they provide a linkage between progressive prosecutorial behavior and respondents’ vote intentions.

MCCLESKEY ACCUSED Justice Powell and The Moral Price of Institutional Pride

<i>MCCLESKEY</i> ACCUSED Justice Powell and The Moral Price of Institutional Pride