Prosecutorial Discretion and Plea Bargaining, Essay Example

Criticism

The issue of prosecutorial discretion and its relationship to plea bargaining has been hotly contested throughout the United States for a number of years. Critics of the system argue that American prosecutors are afforded far too much discretion and that, as a result, the American criminal justice system has tended to lack fairness and accountability. The discretionary authority of prosecutors in the American system is not the result of legislation, but rather, has developed as a method of increasing efficiency. Suggestions have been made that prosecutorial discretion in the United States should be limited so that the system resembles more closely the system used in European countries such as Germany, France and Italy.

Comparative Analysis – U.S., France, Germany, and Italy

In the United States, prosecutors possess near unbridled authority to either dismiss or lessen the charges against defendants. This authority extends to the proceedings either before or after the filing of the official charges and, critics argue, that such authority is too broad. In France, such authority is afforded prosecutors only prior to official charges being filed with the court. Once the charges are filed any alteration in the charges must be first be approved by the court. This system limits a prosecutor’s authority and allows the courts to control the outcome of criminal proceedings. As an additional safeguard and as a way of protecting victims’ rights, the French system also provides the victims of crime with several methods of forcing prosecutors to file appropriate criminal charges.

Under the German criminal system, prosecutorial discretion is limited by the requirement that prosecutors must file charges in all criminal proceedings where there is any factual basis for the filing of charges. This requirement prevents prosecutors from determining on their own whether charges should be filed against a defendant. German prosecutors are required to file charges in all cases where the facts support such filing. German prosecutors have absolutely no discretion except in extremely minor cases where the defendant agrees to make a contribution to a charity. In Italy, the approach to conducting criminal proceedings has been similar to that of Germany and France, however, the recent backlog in cases has caused Italian jurists to consider pretrial procedures that avoid the need for full trials.

Critics’ Proposals

The differences between how the European nations and the United States have handled the issue of prosecutorial discretion has caused experts in the United States to consider initiating reforms. Abolishing prosecutorial discretion is impractical but the adoptions of alternative methods similar to the restrictions adopted in Europe have been proposed. Some of the alternative methods include restricting prosecutorial discretion to certain types of criminal cases, requiring involvement of judges in the plea bargaining process, and the legislative enactment of guidelines that would serve to limit prosecutorial discretion.

Conclusion

At the present time, the criminal justice system in the United States relies heavily upon the use of prosecutorial discretion in order to alleviate the pressure of a growing case load. Without it, the system would become back logged and fail to function without considerable delay.  The systems in France, Germany and Italy have inherent advantages that would benefit the American system but adopting their approaches requires a profound policy change. Presently, despite the criticisms, there is no strong movement in the United States toward reforming how prosecutorial discretion is exercised.  The prosecutorial discretion system is so heavily ingrained in the way that criminal cases are processed that any change would be difficult to initiate.  For the present, the system is forced to continue as it has for years.