Prosecution Discretion

In recent years, the conflict between ascending amount of criminal cases and the limited justice source is significant with the development of human economic society. How to use the limited justice source to handle criminal cases as many as possible is an urgent problem in modern criminal action. Under this background, the procurator in many countries is authorized to have a discretion on instigating a public prosecution or not—the prosecuting discretion ,therefore, the problem on the prosecuting discretion attracts a wide attention. The interests on the prosecuting discretion even exceeds that of the discretion of judge in western procedural research. In China, there is no clear acknowledgement on the problem of the prosecuting discretion in either theory or practice. In legislation, 1979 Criminal Procedural Act and the 1997 amendment only made some limited regulations on the prosecuting discretion, which have no good maneuverability and largely restricts the application of the prosecuting discretion. In justice practice, procurators are often too prissy in exertion of this discretion for many reasons such as ideas etc.. How to clearify the mistake opinion of the theory and establish a scientific and reasonable system on prosecuting discretion has become an important project in the criminal procedure in China. By basing on native source and studying the foreign advanced experience and fruits, this article suggests the theoretic opinion and system design on developing and perfecting this system.This article is composed of four chapters.Chapter 1 is the summary on the prosecutorial discretion. Thr ee sections are used to state the concept of the prosecutorial discr etion, its birth and the reason for its being widely used, the confi ning of its range, its nature and features and its due basis. The a uthor considers that the prosecutorial discretion means that procura tors or prosecutorial organizations think over the materiality of cas e and they have the power to take the circumstances into consider ation to confine the case facts ,adopt the laws and make a properdecision according to their own will and judgment as well as thevalue standard of fairness and justice. There are three reasons forits birth and being widely used: 1.The first and direct reason is that the conflict between ascending amount of criminal cases and the limited justice source has results in the strongly seeking for theeconomy of action; 2.People tend to pursue the pluralistic valuesof criminal action, which leads to the doctrine of retributive punishment that insists that all crimes must be punished conceding to the doctrine of prevention and the policy of decriminalization andnon-criminal-procedure. 3. the prosecuting discretion is the necessary result of the nature's changing of the procurator. Prosecutor have become the representatives of public interests from legal representatives of the king in early, which makes procurators must consider the public interests and the impress that crimes impose on thewhole society when they are bringing a public prosecution.On the basis of the idea of the grand public prosecution, we should confine the prosecuting discretion which is instituted by the opinion on integration of investigation and prosecution to the discretion that is possessed by the subjects of the prosecution in all the stages before the criminal trial. It includes the following powers: Refuse to place a criminal case on file, cancel the case, discretionary nol pres, temporary nol pres and exempt taint witness etc.. The changing of prosecution supplementary prosecution and withdrawing prosecution have nothing to do with the doctrine of prosecuting discretion, so they are no included by the scope of prosecuting discretion.As to the power nature of prosecuting discretion, there are two contrary points in theory. The disputes focus on whether prosecuting discretion has a substantial nature. I think that this problem can be judged by the following two standards after the procurator made a decision :one is the social treatment and the social evaluating of the criminal . The other is whether the same criminal case will be prosecuted again .The decision made by the procurator as a representative of the government is of canonical nature and it has the substantial effect on declaring the criminal suspect ignorant is innocent, the crime of the criminal suspect is petty. According to the principle ofnon bis in idem, after the procurator has made a decision, anyone mustn't bring a prosecution in respect of the same case unless there is a legal reason. Therefore, prosecuting discretion should be a procedural power as well as be a substantial power.Prosecutorial discretion has three features: validity, independency and flexibility. Its validity requires that it should be executed subject to the legal foundation and legal range. Its independency means that the power is particular , its execution is independent and the subject of the power's choice in discretion scope is deemed legal and it has exemption. Its flexibility shows that it is not to adopt the law provisions automatically and it is adopt the discretion flexibly in legal scope. The nature of judgment means how to make a proper judgment to a particular case by adopting the relevant law.As to the justice basis of prosecutorial discretion, the article has analysed it in three aspects and holds that the justice of Prosecuting discretion firstly derives from the people's seeking for the economy of the action. Because of the crime's elapse concealment, the difficulty in reversion, including that the criminals' modus operandi has become trickier and trickier and their ability of anti-investigation has become much stronger, it is very difficult to investigate into the crimes, which requires more sources than other government activities. The extent of law execution depends on the manpower, material resources and technical equipment. The government must provide enough judicial source to meet that requirements, however, the development level of economy can hardly endure the heavy burden of punishing crimes. The process of action is not only a process of expending materials but also a process of spending time. The economy of action embodies in the ratio of the devotion and the output as well as in the shortening of procedural period and the saving of the time. The judicial cost being fixed, the economy of action lies in economy of the time, which is in direct proportion to the facility extent of the action. It is inevitable for the judicial body to keep some criminal cases out of its system in order to avoid the overstock of the cases and delay of the procedure. Secondly, the jutice of prosecuting discretion lies in its function of remedying the limitation of the criminal legislation. Law has the features ofuniversalism, definitude and stability. But with the changing of the social life, the social harmness of some acts ,which is regarded as an act composing of a crime in the early legislation, has gradually become alleviative and cannot meet the standard of being prosecuted that was designed in the early legislation.The lag is incidental to the stability.The universalism and generality of criminal law result in a distance between legal norm and the particular case. The fact is that the legal meaning may not be clear even if the case facts are very clear, which leads to the difficulty in finding the proper basis from the legal norm . Well then , the adoption of the general legal norm may engender the illegibility. The activity of legislation is from the specific stage to the general stage, in which the denial of difference is included. There are always some domains without the relevant provisions in criminal law, which results its non-extension, however, the process of executing the law is from the general to the specific, so it must face the difference and should have an enough consideration on the details of the specific case. So the existence of Prosecuting discretion can make up for the limitation which is derived from the lag, illegibility and non-extension of legal norm. Thirdly, prosecuting discretion is a necessary requirement of the criminal policy on decriminalization. The purpose of is to realize general justice. The lawmaker's attention was the generality or the quintessence of the society, but the specific instances are not typical, therefore the law may lose the individual justice while realizing the general justice. The universalism of criminal law make it only pay attention to the generality and desert the particularity. When criminal law is being applied to a particular person or a particular case, the purpose of criminal law may be breached. It may be fair to "the general ",but it may be unfair to "the individual", so we cannot give up pursuing individual justice. It is impossible to realize individual justice only by law and the execution of prosecuting discretion can embody individual justice adequately. Special prevention is to reform the criminals and make them become square john by penalty which is used to deprive them of their conditions of continuing commiting a crime. The prosecution organization must consider the individual features of the criminal and may make a nol pros decision if it is not necessary tobring a prosecution according to the polts of his crime, which is to meet the requirement of special prevention. By the mentioned means, the criminal suspect can be extricated from the criminal procedure and needn't suffering from the guilty decision, which helps to make the criminal start with a clean slate. In addition, to bring the prosecution against whether felony or misdemeanor will add the adoption of Short-term imprisonment, which may result in the cross taint among the prisoners and make the prisoners become new threaten element to the society.Chapter 2 has a comparative research on prosecuting discretion of continental law system and anglo-american law system. The article reviews the birth and the development of prosecuting discretion in Japan, Germany, The United Sates, The United Kingdom and Canada etc. and analyses comparatively the difference in prosecuting discretion of between continental law system and anglo-american law system, the reasons for the difference and the development tendency. By the mentioned analysis, the conclusions are following: Firstly, there are 3 differences in prosecuting discretion of between continental law system and anglo-american law system:1. The difference in the adoption scope. Since the doctrine of commencement of action by law was firstly adopted in the countries of continental law system , whether Germany, France or Italy has a comparatively narrow free space of prosecutingdiscretion--only limits to minor criminal case. The countries ofanglo-american law system adopt the doctrine of prosecuting discretion and the prosecution organization has the power of discretion to all kinds of cases. 2.The difference in the pattern of executing the discretion. In the countries of anglo-american law system, the scope of prosecuting discretion is comparatively wide and the pattern of execution is comparatively flexible. The prosecutor can determine if he will institute public prosecution, which charge is against the accused , that the prosecution involves all of the crimes or a part of the crimes and if the plea bargaining is adopted and a lowered-level prosecution is instituted etc.. Contrary to anglo-american law system, the prosecutor in the countries of continental law system executes prosecuting discretion comparatively stiffly. Generally speaking, the prosecutor has no thepower of lowering the level of prosecution and exempting the criminal. Except in a few countries such as Germany, the prosecutor is not authorized to plea bargaining with the accused. What's more, the precondition of this bargaining is that the accused "agree" the legal additional terms put forward by the prosecutor, that's to say, there is no higgling in this bargaining. 3.The difference in the restrict of prosecuting discretion. In the countries of anglo-american law system, prosecuting discretion is much more independent and the prosecution organization has a discretion to criminal cases almost without any restriction. Whether police, jury or judge is untitled to intervene. The situations in the countries of continental law system are different. The procedure of supervision and restriction is established for the execution of prosecuting discretion. Even in some countries ,the power on whether the public is instituted belongs to the preliminary judge(e.g. France) and the trial judge(e.g. Germany and Italy). Moreover, Japan, as a country of continental law system, its prosecuting discretion should be paid to more attention. There is no specific limit on Japanese prosecuting discretion, so its adoption is very flexible. But the abuse of prosecuting discretion is prevented because of the establishment of quasi-prosecution system and examinational committee. In Japan, the integration of doctrine of prosecuting discretion and doctrine of commencement of action by law fits like a glove and their merits are adequately used. Secondly, there are four reasons for the difference in prosecuting discretion of continental law system and anglo-american law system: 1.The reason for the development prosecutorial system; 2.The different source of law between continental law system and anglo-american law system: The statue law is generally adopted in the counties of continental law system and the powers and obligatons of the prosecutor are regulated by statutes, therefore, the scope of the discretion of prosecutor is comparatively narrow. The case law is generally adopted in the countries of anglo-american law system. There is no explicit regulations on the powers and obligations of prosecutors ,therefore, the execution of the discretion of prosecutor is comparatively flexible. With the precondition of not hurting the public interests, the prosecutor can adopt free action. Thirdly, the difference in the pattern of action. Adversary system isadopted in the countries of anglo-american law system. Just like the civil action, the prosecutor as one party has the right of deposition. The ex officio litigation system is adopted in the counties of continental law system, which stresses that the prosecution organization must institute public prosecution according to its powers and obligations . What's more ,for the indictable case, the prosecutor is required to institute public prosecution according to the legal principles . Fourthly, there are 2 development tendencies in prosecuting discretion: 1. Prosecuting discretion has a tendency to extend, in the counties of continental law system 2.The prosecutor the counties of continental law system can execute prosecuting discretion more independently while the adoption of the prosecuting discretion in the countries of anglo-american law system begins to be limited.Chapter 3 has discussed on the operation mechanism of prosecuting discretion. The article classifies the execution subjects of prosecuting discretion into three kinds according the different law traditions, judicialsystem and legal norm: single execution subject--prosecutorialorganization or prosecutor. Multi-execution subject--prosecutorialorganization or prosecutor, grand jury and policeman. Commingle execution subject --prosecutorial organization or prosecutor, preliminary judge and court. There are three different patterns in the operation of prosecuting discretion: The first pattern is the centralized execution pattern. Under this pattern, the prosecutor's execution of prosecuting discretion is not independent and must be governed by the integrative principle. The second pattern is the commingle execution pattern. The prosecutorial office executes prosecuting discretion subjects to the consent of court(e.g. Germany) . The third pattern is the individual execution pattern. The prosecution functions are based on the system of special responsibility for each person in The United States , The united kingdom and Italy, and the execution of prosecuting discretion is determined by prosecutor himself, who also is responsible for the execution, and the independency is not almost restricted. The article analyses the merits and the deficiencies of three execution patterns, the centralized execution pattern and the commingle execution pattern have a standard that is easy to be consolidated , they canguarantee the fairness of decision and prevent individual from abusing powers in execution. But its deficiencies are that the responsibilities are not easy to be confined and the efficiency of decision-making is very low. The individual execution pattern. Has the merits of the clear obligations and the high efficiency of decision-making. But lack of the restriction, the arbitrary power is easy to serve for the private purpose of the prosecutor or the political purpose of the Party one of whose members is the prosecutor.The article has summarized the applicable rules of prosecuting discretion. Firstly principle of legality. On one hand ,prosecuting discretion should be executed strictly according to the law. 1.The discretion subject's powers are regulated or authorized by the legal norm ,i.e. the powers are determined by law. 2.The content of the discretion must have the legislative authority. Where there are no laws, there is no discretion. 3. The procedure of the discretion must be legal. The process of the discretion must be open , which must be a justice that can be seen. 4. The illegal discretion must be revoked or corrected according to the laws . On the other hand, the discretion must accord with the purpose and spirit of the laws. Secondly, the principle of benefiting the accused. The government must have a reasonable excuse if it institues a public prosecution against a citizen. The mentioned " reasonable exercise " should be public interests, that is to say , the prosecution organization must provide enough evidences to prove that there are public interests that must be protected by instituting public prosecution before the decision of prosecution against the accused is made., or the decision of benefiting the accused must be made. If the public interests are equal to the interests of the accused, the decision of benefiting the accused should be made subject to not violating the public interests. If it is impossible to find whether the crime that the accused committed is minor or serious and the circumstances of crime are minor or serious, the decision of benefiting the accused must be made. Above all, if there are some doubtful problems on the accused, the prosecution cannot make a decision that is against to the accused. Thirdly, the principle of rationality. The contents of this principle include the following items: 1. The rationality of general ideas must beembodied(i.e. The ideas of the public), because the public ideas represent the common values, which include the requirements of rationality. 2.The rationality that includes the rationality of the particular obligations of the prosecutor. The prosecutor is the representative of the public interests, who must perform objective and fair obligation. The principle of rationality includes the following principles: 1.The principle of meeting the purpose. The execution of prosecuting discretion must accord with the purpose of the legislation and the authorization and mustn't seek for the other purposes that are not in accordance with the legal regulations. 2. The principle of equality. The same things must be treated the same and mustn't be treated differently because of the reasons that are not in accordance with the legal regulations, what's more , it is forbidden to discriminate or give special treatment to someone because of the elements which are not included in facts and legal principles. 3. The principle of proportion. The specific measures and purposes of the discretion must be harmonious and fit each other. In the process of executing the discretion, it is necessary to consider the proportion on the crimes and prosecution or nol pros and to examine if the treatment to the criminal accord with the criminal policy. 4.The principle of due process. The prosecutor mustn't in advance have the relevant result or tendency before understanding and mastering the facts of the case. The prosecutor must respect the procedure participation of the oppose party and hear their ideas adequately. The prosecutor must state the relevant reasons before making the decision. Fourthly, The principle of commonweal. The execution of prosecuting discretion must benefit the whole will of the public and the common hope of the majority.Prosecutorial discretion provides the flexibility to the criminal procedure in some extent while it is easy to be abused. So it is necessary to establish an operation space which helps prosecuting discretion to be executed in a creationary and safe pattern. The article suggests: prosecuting discretion is a discretion that is comparatively weak. In the scope authorized by the law , the legal restricts on the application range must be obeyed. The legislation has enacted the extent of the execution of prosecuting discretion, therefore , its execution must be restricted bylaw. As to the reasons for executing prosecuting discretion in legal scope, some countries regulates them in the statue code, and in other countries , the discretion is determined by the its purpose and the nature of the organization that executes the discretion, that's to say , the mentioned organization or relevant persons must have a value standard ,which are the public interests , and they mustn't make a decision without the standard. If the law is not complete enough or the relevant regulations are not clear, the spirit and the principle of law is the operation boundary of prosecuting discretion.The restricts of prosecuting discretion include the following six items: the restrict of victim, judicial restrict, the inner supervision and restrict of the prosecution body, the restrict of public organizations, and the supervision of the public. The article insists following opinions: The restrict of victim is not ideal because individual's power is comparatively weak. The restrict of public organizations lacks of compellent effect, therefore it is necessary to use judicial review to exert the functions of quasi-prosecution and coercive prosecution in order to realize the purposes of making prosecuting discretion be executed legally and reasonably.The article researches the modes of realizing prosecuting discretion, the modes of realizing prosecuting discretion in other countries include the following items: not filing the case on misdemeanor, extenuatory nol pros, deferrable prosecution, selective prosecution, plea bargaining, and exemption of taint witness etc.. This article mainly research extenuatory nol pros and plea bargaining.extenuatory nol pros means that the prosecution organization determines not to institute a public prosecution against the accused after it examines the criminal case and finds that there are enough facts and evidences to institute a public prosecution and the prosecution organization is provided with the conditions of instituting a public prosecution is also enough. It has three features: 1.The facts of criminal suspect's crime have be ascertained, including the facts on how the crime occurred and who committed the crime. This feature discriminates extenuatory nol pros from the nol pros because of no criminal facts. 2.The ascertained criminal facts meets the conditions for initiation of aprosecution, including substantial conditions and procedural conditions. 3.The prosecution must consider the circumstances of the crime and other things, such as act or other expressions of repentance, the possibility of recommitment, not to require the penalty against the criminal suspect, extenuatory nol pros is classified as the following two kinds:1. Waiver of initiation of a prosecution. It means that the prosecution organization considers that the public interests don't require the court to try the case and makes a direct decision of nol pros after reviewing the case facts and finding that the facts meet the conditions for initiation of a prosecution, what's more ,there are no conditions or period appended to the decision of nol pros. Once the decision of nol pros is made, the terminating of the action begins to go into effect. This pattern is adopted widely in the world. But because of the different legal tradition and different legal regulations, the application scopes have a significant difference, which forms two different application standards. One is only applied for the misdemeanor and law strictly limit its application scope. The countries in European continent and China adopt this standard. As to the misdemeanor, there is no filing case and prosecution. The other pattern is that there is no specific limitation on the application scope. Nol pros is applied for both misdemeanor and felony, which is freely determined by the prosecution organization. The countries of anglo-american law system and Japan adopt this standard., The prosecutor have a discretion to all the cases that meet the conditions for initiation of a prosecutiono The article mainly analyses the application conditions of pros nol of misdemeanor in China and considers that by the regulations of law and the intention of legislation., "the case that is minor " confines "the offender need not be given criminal punishment or need be exempted from it according to the Criminal Law", that's to say , "the case that is minor " only confines "the offender need not be given criminal punishment according to the Criminal Law" ,and the viewpoint that the application condition of "the offender need be exempted from criminal punishment according to the Criminal Law" is not limited by "the case that is minor " doesn't come into existence2.conditional nol pros 。 It means that when the prosecution organization determines whether it will institute a public prosecution or not, under the circumstances that there is enough suspicion and evidences to institute a public prosecution and the conditions for initiation of a prosecution is met, the prosecution organization is allowed to determines not to institute a public prosecution against the criminal suspect temporarily and to require the criminal suspect to perform particular obligations during a specific period or to require the criminal suspect to accept probation and supervision: if the criminal suspect has performed the particular obligations during the specific period or the criminal suspect hasn't committed an intentional crime during the period of probation and supervision, the prosecution organization won't institute a public prosecution against him and the action is terminated accordingly. On the contrary , if the criminal suspect hasn't performed the particular obligations during the specific period , the prosecution organization will institute a public prosecution against him and ask for the court to investigate the criminal responsibility. Conditional nol pros is also called as "deferrable prosecution" or "deferrable nol pros". Since the precondition of this nol pros is that the case meets the conditions for initiation of a prosecution, to institute a public prosecution is of due meaning while nol pros is exceptional, and in order to emphasize its meaning of nol pros , it is called as "nol pros ". It includes nol pros of preservable prosecution and nol pros of suspension of prosecution with probation and supervision. Nol pros of preservable prosecution is adopted by Germany, Japan, The United States and Taiwan district. This nol pros requires the criminal suspect who is not charged to perform the particular obligations such as compensate for a loss, provide estovers or pay the commonweal organizations or exchequer etc.. nol pros of suspension of prosecution with probation and supervision is adopted by Japan and The United States, 。 The prosecutor sometimes doesn't determine nol pros completely and makes an interlocutory decision in order to give the accused( usually the first offender) second chance. The prosecutor often enacts the relevant conditions for the case by the consent of the accused. If the accused doesn't break any legal regulations or isn't arrested forother crimes during a period of 6 months or 12 months. The prosecutor will not institute a public prosecution.Plea bargaining originates from The United States and is widely applied in its criminal justice, which is a very important part of U.S. criminal justice system. Today, Plea bargaining is widely adopted in Australia, Canada, , Britain and South Africa etc.. Other countries Such as Italy and Germany etc. also have partly absorbed the spirit of plea bargaining. It means that, before the court hears the case, the prosecution provides a comparatively minor charge or less charges or promises to submit the sentence suggestion that is beneficial to the accused to the judge etc. in order to get the defendant 's guilty plea in return and bargains with the accused to obtain the optimal condition for the prosecution.Plea bargaining is widely applied in U.S. for the following elements: 1.The discretion of the prosecutor is wide. 2.The adversary system endow s the accused with both procedural and substantial jus dispodendi and self-govern right. 3. The protection of the defandent's right is too strong and the proof standard of instituting a public prosecution is very high and strict, therefore, plea bargaining is an unavoidable choice by the prosecutor. 4. The jury is composed of curbstone persons and the findings of the jury is unpredictable, which means a tremendous risk to the prosecution and the accused. 5.Americans pursue pragmatism and stress economic results, The application of plea bargaining will bring obvious benefits to all the parties.U.S. and other countries establish some rules on the application of plea bargaining by legislations and cases in order to guarantee the proper application of plea bargaining: 1. The accused obtains the help of the counsel. 2. Generally speaking, the judge doesn't take part in plea bargaining.3. The confession of the accused is voluntary, sane and aware. 4. The guilty plea of the accused is made on the basis of facts. 5.The prosecutor mustn't eat his promise. If the judge accepts the agreement, the accused will obtain the affirmatory conditions. 6.The agreement must be examined by the judge and doesn't limit the judge. 7.Whether the facts of plea bargaining or the discussion that leads toplea bargaining mustn't be used against the accused in the following trial.There are three kinds of plea bargaining: bargaining of charge, bargaining of quantity of crime and bargaining of sentence. Plea bargaining in U.S. is not limited to the ordinary criminal cases. In Britain, the "sentence discount " of 1/3 to 1/4 is offered to the accused who makes guilty plea. Italy provides that the nature of the crime of the accused mustn't be bargained, and the communation scope is 1/3 of legal sentence and the final sentence mustn't exceed 2-year imprisonment and detention.The procedure of plea bargaining: Before the trial, the prosecution and the accused have a negotiation and bargaining, if the accused meets the demand of the prosecution, the prosecution revoke the charge or lower the level of the charge or promises to a minor sentence. After the prosecution and the accused come to an agreement, they submit the agreement to the court during the trial, and the judge will examine the agreement and affirm that the agreement is legal and voluntary , then the agreement will be adopted and the judge will not hold a hearing and convict and sentence directly according to the agreement. The agreement will have the final effect after the accused makes the guilty plea.The date on which the accused may revoke the guilty plea is limited to before the sentence. Some courts forbids the accused to revoke the guilty plea after the sentence. There are two results if the prosecutor violates his promise: One is to coercively execute the agreement. The other is to return to the beginning, i.e. the judge revokes the guilty plea of the accused.Charter 4 suggests the establishment of the system of prosecuting discretion in China. The article thinks that there are two problems on prosecuting discretion in legislation and practice: One is that its applica...