The Evolving Role of the Public Prosecutor: Challenges and Innovations

Description

The modern public prosecutor is a figure both powerful and enigmatic. Legal scholars and criminologists often identify "three essential components" of criminal justice systems: police, courts and corrections. Yet increasingly, the public prosecutor occupies a distinct role independent from any of these branches. Acting outside of the court, and therefore largely out of the public eye, the prosecutor's control over whether and what charges proceed to court can limit judicial discretion on sentencing, open pathways to alternative measures and even deny entry into the criminal justice system entirely. In this sense the prosecutor serves as a true "gatekeeper" to the criminal process. This book addresses key aspects of the evolving role of domestic and international prosecutors in common law and civil law systems in the twenty-first century, and the challenges posed by this evolution. This collection of chapters from respected scholars takes an international, comparative approach and explores how these different legal systems have borrowed theorisations and articulations of the prosecutorial role from each other in adapting the office to changing conditions and expectations. The volume is structured around four main themes relating to the role of the modern prosecutor: the nature of the prosecutor's office, the role of the prosecutor in investigations, prosecutorial discretion and how it is exercised, and politicisation and accountability of prosecutors. This book is essential for scholars and students in criminal justice, pre-law/legal studies, criminology, justice studies and political science, and is useful as a resource for those interested in legal change around the world. Cover Half Title Book Title Copyright Dedication Table of Contents Notes on Contributors Introduction The Origins of the Modern Public Prosecutor in Common and Civil Law Jurisdictions The Modern Public Prosecutor Introducing the Book Acknowledgements Notes References Part I The Office of the Modern Public Prosecutor 1 Decoding Hegemony: Exploring the Discourse of a Prosecuting Elite Introduction Looking at Public Prosecutors Conversations with “High Mandarins” Mandarin: Administrative and Doctrinal A Civilising Trajectory Contemporary Guardians of Core Prosecution Concepts Accountability Concluding Discussion Notes References 2 New Public Management, Citizens’ Fears and Calls for Justice: The Prosecutor’s New Role in Italy Prosecution and the Interpretation of the Law Rules and the Working of Judicial Action in Italy The Local Dimension of Judicial Action Calls for Justice, People’s Fears and the Organization of Judicial Action Notes References 3 Deferred Prosecution Agreements: Negotiating Punishment Before Conviction? Introduction Part I – Negotiating DPAs: Bargaining in the Shadow of the Criminal Law? Part II – Negotiating DPAs: Unjust Bargaining at the Boundaries of the Criminal and Civil Law? Conclusion Notes 4 The Public Prosecution Service and the Structuring of Sentencing – The Nordic Case of Denmark Introduction Legal Framework of Criminal Sentencing in Denmark Technique #1: Preparatory Works to Statutory Amendments Technique #2: Prosecution Guidelines Technique # 3: Prosecution Case Databases The Institutional Role of the Public Prosecution Service Taking Part in the Drafting of Preparatory Works to Statutory Amendments The Quasi-JudicialRole to Presenting Facts and Law to the Judicial Courts Controlling Knowledge on Normal Sentencing Levels through its Hierarchical Organizational Structure Auditing Criminal Sentencing Conclusions Comparing Sentencing across Jurisdictions – Conclusions Notes Part II The Role of Prosecutors in Investigations 5 The Role of the Finnish Prosecutor in Preliminary Investigations – Efficiency or the End of Impartiality? Introduction Historical Development of the Prosecution System in Finland Support for Increased Collaboration Throughout Times Advantages of Complete Separation Support for the Collaborative Model Conclusion Notes Sources and Bibliography 6 Framing Prosecutor–Police Relations in Europe – A Concept Paper Introduction The Relevance of Procedural Contexts A Brief Comment on the Extant Literature The Importance of Prosecutor–Police Relations in the Prosecution Process Institutional Characteristics and Key Values Addressing the Allocation of Responsibilities Considering and Understanding Change Conclusion Notes Some Relevant Sources for Such Research 7 Police Prosecution and Access to Justice for People with Disabilities Introduction Department of Prosecution Guidelines in Victoria Cognitive Impairment as a Hidden and Complex Disability The Prison Population Response to Vulnerable People Interview Friends The Effect of the CRPD What Should Be in Place? Conclusion Notes Bibliography 8 Roles of Lawyers and Investigators in Investigations of International Crimes Introduction Methodology Domestic Role of Police and Prosecutors Adversarial/Common Law Systems Inquisitorial/Civil Law Systems Backgrounds of Lawyers and Investigators in International Criminal Courts and Tribunals Role of Lawyers and Investigators in International Criminal Courts and Tribunals Suspect Interviewing Conclusion Notes Bibliography Part III The Nature and Extent of Prosecutorial Discretion 9 The Riddle of Prosecutorial Discretion Introduction The Public Interest Test Morality, Social Consensus and “Wrongfulness” Discretion and the Criminal Law Challenges in Framing the Discretion to Prosecute Conclusion Notes References 10 Prosecuting Domestic Violence Cases: Listening to Victims Introduction Criminal Justice Responses and Perpetrator Responsibility Explaining Under-Prosecution Domestic Violence: Prosecutorial Guidelines in Australia Victim Autonomy Conclusion Notes References 11 Prosecutorial Discretion about Special Measure Use in Australian Cases of Child Sexual Abuse Introduction Method Results and Discussion Conclusion Acknowledgements References 12 Community Prosecution Code Enforcement in Dallas, Texas: Effects on Serious Crime Legal Authority for Code Enforcement Code Enforcement as Community Prosecution Theoretical and Empirical Foundations Intervention and Research Setting Methods Outcome and Explanatory Measures Estimation Technique Results Discussion and Conclusion Limitations Conclusion Notes References Part IV Prosecutors, Politics and Accountability 13 Prosecution and Politics in Germany: The Struggle for Independence Growing Pressure on Prosecutors: Recent Examples from Germany The Role of the Prosecution Service in Germany The Public Prosecution Service: The Historical Background Growing Demands for Independence: What Has Changed? Concepts for More Independence The European Impact The Future of the Prosecution Service in Germany Conclusions Notes Bibliography 14 Prosecutorial Independence and Effectiveness of the Nigerian Criminal Justice System Introduction Public Prosecutions in Nigeria Office of the Attorney General Independence of the Prosecutor Institutional Location of the Prosecution and External Factors Appointment and Tenure of the Prosecutor Mechanisms for Accountability and Efficiency Conclusion Notes 15 The Decision to Prosecute – The Accountability of Australian Prosecutors Introduction Discretion and Accountability Australian Context Australian Safeguards Conclusion Notes References 16 Regulating the Prosecutorial Role in Wrongful Convictions Introduction The Causes of and Prosecutorial Role in Wrongful Convictions A Taxonomy of Hard and Softer Strategies to Regulate Prosecutorial Conduct Combining Hard and Softer Strategies to Better Prevent and Correct Wrongful Convictions Conclusion Notes 17 Conclusion Reference Index