The Attorney General, Politics, and the Public Interest. Contributions to an Evolving Constitutional Convention

The prosecutorial independence of the Attorney General (AG) is a firmly established constitutional convention in Canada, but it is also an evolving convention, subject to ongoing contestation and debate. This article is a contribution to that debate. It defends a normative constitutional framework wherein the AG’s authority to make final decisions in matters of criminal prosecution is balanced against a corresponding duty to consult with cabinet and the prime minister on the public interest implications of prosecutorial decisions when the circumstances warrant. Within this normative framework, respectful contestation and debate amongst ministers, the prime minister, and the AG in determining the public interest merits of prosecution is welcomed, even encouraged, and if conducted with the requisite integrity, objectivity, and transparency, it is regarded not as a threat but as a valuable check and balance on AG independence and an indispensable form of quality control on the exercise of prosecutorial discretion.

Examining the Gap Between Prosecutor Attitudes and Decisions: Case Prioritization Through Case Elimination Mechanisms in Driving With a Suspended License Cases

Prosecutors are granted considerable discretion, particularly for misdemeanors. The current study assesses the processing of misdemeanor driving with suspended license (DWSL) cases. Using interview and administrative data from a Florida jurisdiction, the study first examines prosecutorial attitudes about case elimination mechanisms—declination, dismissal, and diversion—then evaluates the extent to which prosecutors’ views about handling DWSL cases and racial disparities in the legal system are reflective of case processing outcomes. Results indicate prosecutors view case prioritization as important, though it is unclear how they achieve it. Despite a reluctance to decline cases when the elements of an offense are supported by evidence, prosecutors acknowledge they cannot pursue all offenses if there is only marginal public safety return. Contemporaneous administrative data show that DWSL cases were routinely pursued in 2017: nearly all DWSL cases were filed, a third were dismissed, and 11% were diverted. Regression analysis also demonstrates that prosecutors’ views on racial and ethnic disparities are somewhat aligned with the case processing decisions for DWSL cases processed in 2017. These findings are discussed in terms of their implications for prosecutorial policy, practice, and the effects of prosecutorial discretion for low-level cases on communities.

Prosecutorial Discretion and Judicial Review: An Analysis of Recent Canadian and South African Decisions

The question whether the functions performed by the prosecutor in the criminal justice system are subject to judicial scrutiny has been a matter for concern in common-law jurisdictions for quite some time. The courts in the Commonwealth generally agree that prosecutors must function independently; act fairly and responsibly in the interests of the public; and must be free from political interference. Their role in the administration of justice is to uphold the rule of law. Therefore, the exercise of prosecutorial discretion should ordinarily not be interfered with by the courts except in rare cases. However, the extent to which the courts, in respective Commonwealth jurisdictions, review prosecutorial discretions differs. A comparative study of the Canadian experience and the South African approach, where the judicial approaches to the review of prosecutorial discretion significantly differ, is a clear illustration. In Canada, the courts hardly interfere with, or review the manner in which the prosecutor performs his or her duties, except that prosecutorial discretion is not immune from all judicial oversight, since it is reviewable for abuse of process (see R v Anderson [2014] 2 SCR 167). In South Africa on the other hand, the exercise of the powers of the prosecutor and their ramifications are, like every exercise of public power, subject to the constitutional principles of legality and rationality. The recent judgments of the Full Bench of the Gauteng Division, Pretoria in Democratic Alliance v Acting National Director of Public Prosecutions 2016 (2) SACR 1 (GP) as affirmed by the Supreme Court of Appeal in Zuma v Democratic Alliance 2018 (1) SA 200 (SCA)—the so-called ‘spy-tape’ saga—are the latest illustrations of this approach.

Rethinking Prosecutorial Discretion: Towards A Moral Cartography of Prosecutors

This article examines the justifications that a group of prosecutors employs when coordinating human trafficking investigations in the Amazon. The study is based on interviews with officials who work in Madre de Dios, Peru, a region affected by small-scale gold mining, whose demand for labour has increased the incidence of human trafficking. I draw from Boltanski and Thévenot’s polity model to elucidate three moral principles regularly endorsed by prosecutors in the course of criminal investigations: efficiency, civic and domestic values. Together these comprise a moral cartography of prosecution. This study from the Global South contributes to a more holistic—and pragmatic—understanding of prosecutors’ charging decisions, complementing research approaching this topic from the perspective of bounded rationality.

Victims and Prosecutors

This chapter explores crime victims’ experiences in U.S. trial courts in relation to the passage, application, and adjudication of state and federal victims’ rights legislation (VRL). It reviews victims’ current rights established through legislation and case law: to privacy, information, and notification; to be present; and to be heard in pre-trial hearings, in trials, in plea bargaining, and in victim impact statements. It reviews qualitative research documenting how and why prosecutorial discretion is often exercised to limit victims’ participation in trials and pleas, highlighting incentives for emotion management. It also reviews proposals, which are counter to this standard, designed to achieve greater victim participation and to produce higher quality testimony, including extensive pre-court preparation and courtroom intermediaries. It assesses the efficacy of practices to protect victims from secondary victimization in court, including shielding (close circuit video and screens) and support dogs. It explores use of private attorneys to (1) ensure that prosecutors and judges comply with VRL and (2) pursue victim-directed, private prosecution of sexual assault in the United States and elsewhere. It concludes that the promise of VRL—to provide therapeutic justice outcomes, achieve victim satisfaction, and enact procedural justice—is yet to be realized in the United States; however, an evidence-based approach toward prosecutorial practice would be advantageous for victims.

Bar Authorities and Prosecutors

The professional regulation of U.S. prosecutors is primarily the responsibility of state judiciaries, which regulate all attorneys, including prosecutors, through the adoption and interpretation of professional conduct rules and by enforcing these rules in the attorney discipline process. Although Bar associations have no formal role in regulating prosecutors, they wield informal influence by drafting and interpreting the professional conduct rules that state judiciaries adopt and by publishing standards that offer guidance to prosecutors. Ultimately, professional regulation has limited practical significance for U.S. prosecutors because many professional conduct rules are inapplicable or minimally applicable to their work, and because those rules that do apply (such as those governing attorneys’ advocacy) are uncontroversial and largely coextensive with constitutional law and other law governing prosecutorial misconduct. The rules do not significantly address prosecutors’ charging and plea bargaining decisions—controversial areas of practice relegated to prosecutorial discretion—and do not codify some professional expectations, such as those regarding prosecutors’ heightened duty of candor, that are expressed in court decisions and in unenforceable guidelines. Occasionally, the Bar has tried to persuade courts to adopt more demanding rules for prosecutors or to interpret existing rules more demandingly. Prosecutors have generally opposed these efforts, which have achieved limited success while exacerbating tensions between prosecutors and the Bar. Consequently, professional conduct rules do not fully capture the conventional understanding that prosecutors have a unique professional role that gives rise to different and, in some respects, more demanding professional obligations than those of other lawyers. The professional conduct rules have only limited influence and do not constrain some of prosecutors’ most controversial and troublesome decisions and behaviors.

Prosecutors and Plea Bargaining

This article reviews the empirical research literature on plea bargaining in the United States. It starts with an historical overview of the evolution of plea bargaining in the criminal justice system. It describes how the rise in plea bargaining has been coupled with an expansion of prosecutorial power. In particular, it elaborates on the role of modern sentencing reforms in enhancing prosecutorial discretion in plea negotiations. Next, it examines normative perspectives and philosophical arguments regarding the utility of plea bargaining. This includes discussion of how plea bargaining may circumvent the goals of criminal punishment. Lastly, it reviews the empirical state of the research literature on plea bargaining and offers future directions for expanding this work. It concludes with policy recommendations aimed at addressing continuing issues and concerns in the guilty plea process.

Prosecuting Misdemeanors

Although violent crime gets the most media, public, and legislative attention in the United States, misdemeanors make up approximately 75 percent of all criminal court cases, with more than 13 million new misdemeanor cases filed each year. This chapter discusses the role of prosecutors in the misdemeanor system. First, it addresses prosecutorial discretion and mass misdemeanor criminalization. Prosecutors, with near-unfettered discretionary power, are characterized as the most powerful actors in criminal cases. Yet often, prosecutors fail to properly exercise their discretion in low-level cases or are completely absent from the charging and sometimes even the adjudicatory processes. This is particularly problematic in misdemeanor cases, where informed prosecutorial decision-making is critical given the enormous volume of arrests and structural and institutional realities that weaken the role of other lower court actors. Proper exercise of discretion is also critical given well-documented racial disparities in the misdemeanor realm and the need to mitigate the myriad disproportionate effects of the ever-growing number of collateral consequences that flow from even a minor criminal record. Second, the chapter examines the misdemeanor prosecutor’s role at key stages: charging, bail, plea bargaining, sentencing, expungement, and post-conviction innocence claims. The chapter draws on examples of prosecutorial practice as well as theoretical and empirical research about prosecutorial discretion. Some recently elected so-called progressive prosecutors have already implemented significant promised changes. Although implementation of such reforms is nascent, time will tell whether a newly attentive electorate and a fresh prosecutorial approach will begin to roll back the extreme overuse and disproportionate impact of misdemeanor prosecutions in the United States.