| Plea bargaining in American originated at the beginning of the 19 th century,and has aroused various doubts since its emergence.In the doubts,plea bargaining now shows its tenacious vitality and huge influence.This paper is intended to prosecutor's role in the process of plea bargaining evolution as the research object.Through historical investigation,comparative research,case analysis,sociological analysis,this paper sorts the role of the prosecutor,operation situation,the main bargaining pattern in the three historical block,analyses the reasons of the prosecutors leading plea bargaining,compares the similarities and differences of system of plea bargaining and leniency system of pleading guilty and accepting punishment.In order to sovle problems in the operation of prosecutorial discretion in China,this paper combines the criminal judicial practice in our country.From point of view to improve negotiation power of prosecutor,this paper proposes recommendations to perfect leniency system of pleading guilty and accepting punishment.In addition to the introduction,this paper is divided into five parts,and the main content of each chapter is as follows.The first chapter is divided into four sections.The first section is the historical evolution of the U.S.attorney system.Since the "geographical great discovery",the residents of North American colonies had presented the characteristics of multi-ethnicand multi-cultural integration,and its procuratorial system had its own characteristics through constant reformation.The British common law is certainly not the unique force that influences the American procuratorial system.In the United States,the debate on the origin of American prosecutors has never stopped.The suzerainty of the early North American colonies included Britain,France and Netherlands.The suzerainty's procuratorial system more or less influenced the establishment and operation of the colonial procuratorial system.Therefore,on the basis of the analysis and introduction of various theories,combined with the unique historical and cultural background in the colonial period,the American public prosecutor system is a mixed system with the characteristics of the civil law system and the main body of the British common law tradition.In the development of hundreds of years,the evolution of American procuratorial system is mainly from private prosecution to public prosecution,from the appointment to the election,and from the monorail system to the dual system.The second section mainly analyzes the types of crimes for which plea bargaining is applicable to prosecutors.First of all,the main types of crimes and penalties in the United States before the 19 th century are investigated.During this period,moral and religious crimes played an important role in the criminal law system.After the war of independence,the criminal law strengthened the protection of property,and the penalty also showed a trend of light punishment.In this paper,through sorting out the criminal cases in Massachusetts and other regions,the liquor case becomed the first case type applicable to plea bargaining in Massachusetts.Plea bargaining in cities like New York and Boston didn't start with alcohol cases.Because of the classification of murder,felony cases such as murder can also be gradually applied to plea bargaining.The third section discusses the limitation of the judge's discretion in sentencing.Due to alerting on power,although the judge received the power of judicial review,but the Supreme Court of United States for judicial review is rare before 1860.On the one hand,the judge discretion was codified movement of criminal legislation and checks and balances ideas spread into culture,on the other hand,under the restraint of mandatory sentencing laws in judicial operation,prosecutors as the role ofadministrative department was not outstanding,and the judge discretion to exercise the loopholes and continuous use of plea bargaining in practice is found.The fourth section further examines the main modes of prosecutors' plea bargaining.The functions and powers of prosecutors in the United States are considered to represent justice,law and order,and to pursue crimes on behalf of the people and the government.The prosecutorial discretion of the United States mainly absorbed nolle prosequi of the British attorney-general,which gradually evolved into an exclusive power with almost no judicial review.Before the civil war,the prosecutor in plea bargaining can use one of the main chips such as excessive litigation fees,charges,and the prosecutor applied nolle prosequi to plea bargaining process.Charge bargaining becomed the main bargaining pattern during this period.In the 1840 s and 1850 s,prosecutors which were restricted to not-prosecution by legislation,used “on file” pattern in practice.The second chapter includes four sections.The first section analyzes the increase of criminal cases brought by the growth of criminal legislation since economic development and industrialization.In the 19 th century,industrial revolution,immigration and westward movement influenced the development of the economy in United States.Finally,to the end of 19 th century and the early 20 th century,the United States basically completed the industrialization,followed by the frequent economic crisis and social unrest,political corruption and inefficiency.In order to reverse the ills of economic development,the United States set off a wave of expansion of criminal laws,with a large number of economic regulation,social legislation with criminal sanctions,and moral legislation.The prosecutor's charge function expanded.The second section focuses on the expansion of the powers of the federal prosecutor and influence since the creation of the department of justice.After the civil war,the executive power,especially the executive power represented by the President of the federal government,was expanded more than ever.The power,number and salary of federal prosecutors were increasing,so was the status of federal prosecutors.In particular,the creation of the federal department of justice changed the functions ofthe department of justice.Department of justice was given executive powers to supervise judges,such as officials accounts,the distribution of judges salaries,the power to recommend personnel,and so on.The third section introduces the influence of progressivism movement on the operation of criminal justice.In order to expose and govern problems in social and economic fields,a progressive movement was initiated.The movement had a great impact on the political and legal fields of the United States at that time.First of all,the political philosophy in this period changed from the law of nature to pragmatism.The field of criminal justice is also deeply influenced by the pragmatism of jurisprudence,and the discussion on the purpose of punishment led to the establishment and development of the system of irregular punishment,the probation system,the parole system and the juvenile justice system.At the same time,the field of criminal justice has also undergone profound changes.Due to the flourishing of due process and the professionalization and specialization of the legal profession community,the trial was increasingly complicated.From the perspective of economy,both sides of the prosecution and defense are inevitably inclined to choose plea bargaining.The inherent defects of the grand jury system also led to its own charge function being constantly weakened,which provided further institutional space for prosecutors to exercise their discretion.The fourth section analyzes the change and development of plea bargaining after the civil war.Due to the dual system of American politics,this paper respectively examines the situation of plea bargaining of the federal government and the states.This paper also selects murder and liquor cases as examples to analyze the characteristics of plea bargaining at this stage,which initially shows the influence of political factors.The development of plea bargaining cannot be separated from judges.State courts had two different opinions on plea bargaining,while federal courts was generally silent on plea bargaining.Prosecutors used the probation,indeterminate sentenc and parole as tools for applying plea bargaining.In terms of specific operation,the sentencing power of prosecutors was expanding.Prosecutors also negotiate with defense attortneys by means of criminal pattens and criminal records.Plea bargaininghad a greater impact on the fine of defendants.This paper also analyzes the influence of public opinion on the prosecutors choice of plea bargaining.The third chapter is divided into three sections.The first section focuses on the theory to explore the prosecutor's role of plea bargaining,the outbreak of the crime wave,judicial scandal and the use of positivism research method.Crime surveys were organizedby non-governmental organizations through the case and statistic analysis,and gradually discovered plea bargaining in the hidden criminal justice process,and puts forward suggestions for the reform of the procuratorial system.In the 1920 s and1930s,many scholars,based on the judicial data published in the crime survey report,made a more detailed and profound study on the discretion of prosecutors,revealed the existing problems and put forward their own suggestions for improvement.The second section discusses prosecutor's broad discretion which is gradually confirmed by the court.In the 20 th century,commercial crimes,organized crimes and drug crimes becomed malignant tumors endangering the state,society and individuals.Prosecutors had not only the power to charge these types of crimes,but also had right to investigate.Judge also played an important role in the history of plea bargaining.On the one hand,the judge gradually changed the attitude of the plea bargaining from the end of the first world war,and increased judicial scrutiny on the factual basis,voluntariness,effective legal help on plea bargaining.Finally,the federal Supreme Court confirmed the constitutionality of the plea bargaining through the cases in 1970.The third section studies the refinement of plea bargaining mode after the first world war.In the 1950 s and 1960 s,there was a revolution in due process,and the articles of the bill of rights were federalized.The full coverage of the defense system in criminal cases promoted the rise and development of the public defense system,and the predicament of the system further led to the willingness of both sides to bargain.After the first world war,the ratio of plea bargaining of the federal and state governments was generally on the rise.The plea bargaining system also showed the trend of typification.This paper analyzes the plea bargaining in murder,drug crimes,military crimes,juvenile crimes and other types of cases,and probes into the typology of plea bargaining according to the different transaction subjects and modes.The fourth chapter is divided into three sections.The first part introduces the crisis of abolishing plea bargaining since 1970 s,and analyzes several foreign theories to explain the rise of plea bargaining.The second section explores the reasons for the rise of plea bargaining in special political and legal culture.The spirit of contract and the practice of autonomy shaped in the colonial period have deeply influenced the attitude of the two sides and the public attitude to plea bargaining.The theory and practice of decentralization make prosecutors have exclusive power to decide whether and how to intiate charges.This paper argues that the election system of prosecutors has a prfound impact on the micro-operation of prosecutors' criminal proceedings,and disposition of criminal cases is largely for their electoral interests.The third section analyzes the tendency of prosecutors to apply plea bargaining through applying the basic principles of legal sociology of pound's social control thoery.The rise and development of plea bargaining in the 19 th century was also the period of industrialization and large number of immigrants in the United States.Population changes showed a certain correlation with the change of plea bargaining.Through the expansion of the universal suffrage system and the influence of organizations in the 19 th century,prosecutors responded through the "lenient mechanism" in plea bargaining in order to ease the tension between social organizations.The fifth chapter is divided into four sections.After comparing the different positions of prosecutors in the state power organs of China and the United States,Section one focuses on the analysis of the problems existing in the constitutional position of procuratorial organs in China,and puts forward the establishment of procuratorial organs' power-controlling legal supervision mechanism to improve the legal effectiveness and judicial supervision.The second section focuses on the enlightenment of the evolution of American prosecutors' discretion to our country.The United States' prosecutor enjoys almost absolute prosecutorial discretion,but the exercise of such discretion is also subject to internal discretion policies and defenses in case law.This paper examines the changesof procuratorial discretion in China since when the law was changed in the late qing dynasty,analyzes the problems such as unclear boundaries of the exercise of procuratorial discretion,and proposes to reshape the boundaries of the exercise of procuratorial discretion according to the standards of public interest,and to construct a mechanism to guarantee the independent exercise of procuratorial discretion in accordance with the law.The third section analyzes the revelation from the judicial review of the prosecutor's plea bargaining,and discusses the presumption of constitutionality in the judicial review of the United States.It puts forward that our country should establish the presumption of constitutionality in criminal justice on the one hand,on the other hand,should construct the judicial review mechanism of confession and punishment centering on the voluntariness.The fourth section makes a comprehensive analysis of the similarities and differences between plea bargaining system and lenient punishment system.This paper makes a deep analysis of the problems that Chinese prosecutors face when applying the negotiation procedure of confession and punishment,such as the high cost of negotiation and the lack of motivation of professional risk.This paper summarizes the position of procuratorial organs in the system of punishment for guilty plea,and takes the special non-prosecution system in the new criminal procedure law as an example to specify the specific applicable norms of the principle of measuring public interests in the special non-prosecution.This paper proposes to strengthen the power for prosecutors to apply plea bargaining in terms of highlighting the status of both parties,improving the decision-making ability of both parties,implementing the substantive trial and building the contract order of plea bargaining. |
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