On The U.S. Doctrine Of Prosecutorial Selectivity

The U.S. Doctrine of Prosecutorial Selectivity is a system that the prosecuting attorney, during the stage of review and prosecuting, is vested with a broad range discretion in deciding whether to prosecute, whether to withdraw a claim and which of several possible charges to bring against an accused, as long as his decision is not made basing on bribery、discrimination or other factors prohibited by law. In contrast,prosecutor in our country only has limited non-prosecution discretion. Therefore,considering its function in benefit protection and balance and power restriction, it will be helpful for us to study this doctrine for the purpose of solving the practical dilemma in our prosecuting stage. Apart from the part of introduction, this whole article is divided into four parts and includes 35000 words.Part I is the historical review of the U.S. Doctrine of Prosecuting Selectivity. The Doctrine originated from the Nolle Prosequi in England. Thereafter, apart from the Attorney General, line prosecutors are also vested with this discretion, the scope of which also extended from Nolle Prosequi to prosecuting selectivity. Finally, with the development of U.S. judicial practice, the modern theory of this Doctrine has great development in its legitimacy bases and restriction.Part II is the legitimacy bases of the U.S. Doctrine of Prosecuting Selectivity.Firstly, in terms of conceptual foundation, the Doctrine is conform to the concepts of judicial individualism and inference to prosecutor’s skills; secondly, from the aspect of institutional foundation, the Doctrine is based on the U.S. political system of separation of powers and the circumstance of overcriminalization; thirdly, in practical aspect, this Doctrine is also helpful in solving the problem of lack of available law enforcement resources.Part III is the content of the U.S. Doctrine of Prosecuting Selectivity. Under this Doctrine, prosecutor has the right to decide whether to prosecute or not, which of the charges or act to prosecute. During the process of deciding, prosecutor should consider the quantity and quality of evidence、the priority of law enforcement、the seriousness of crime、the conditions of the accused and so on. Besides, prosecutor’s discretion to select is regulated by the legislative and judicial branches. The selective prosecution and vindictive prosecution, which violate the Principle of EqualProtection and Due Process Clause, are prohibited.Part IV is author’s viewpoints for using the U.S. Doctrine of Prosecuting Selectivity for inference. On the on hand, in light of the difference between China and the U.S. in the aspects of prosecution theory and judicial practice, it is infeasible for us to copy he U.S. Doctrine of Prosecuting Selectivity. On the other hand, this Doctrine is of great help in saving resources and improving efficiency of prosecution.Therefore, in the process of establishing our Prosecuting Selectivity System, we should adhere to the principle of legality. Prosecutor could be given more discretion if only takes both the legal effect and social response into consideration. In the meantime, prosecutor’s discretion should be well restricted.