Public Prosecutors and Discretion: A Comparative Study

By Julia Fionda | Go to book overview

7 Using the Models in Practice

1. INTRODUCTION

THE prosecutor is inherently involved in the sentencing process and the three models expounded in the last chapter illustrate theoretical bases upon which this sentencing role can be analysed. The models are theories; they are not descriptive of the prosecution function in any one jurisdiction. They are useful, however, in finding a justification and rationale for the development of this part of a prosecutor's duties. The models also have a practical application, as tools for considering the common problems encountered in any criminal justice system where informal, administrative decision-making becomes a prominent feature. The core tenets of the models are not restricted to an analysis of a prosecution system, but they were constructed from a study of that branch of the criminal justice process. The applicability of any theory of criminal justice is as varied and complex as the system itself. Just as the branches of the system are not discrete but interlinked, so too are the theories that seek to rationalize them.

The particular issues considered here, such as the constitutionality of a prosecutor's sentencing role, 'net-widening', accountability and the concept of the public interest, have been discussed in the light of the three models, in an attempt to explain and rationalize them. The models do not necessarily prescribe solutions to these problems, but they can be used to illustrate how such issues have been approached in various jurisdictions, and the policy choices available to balance the harm caused by problems of 'hidden' decision-making with the benefits of a 'sentencing process' at this early stage.

Unlike Packer's models, these three models of prosecution decision-making are not mutually exclusive, and in each of the four systems studied, some or all of them co-exist and apply to different forms of prosecution sanctioning. None of the systems applies one of the models to the complete exclusion of the other two. Indeed, the models overlap. For example, under the credibility model, although the central aim is to increase intervention in petty criminal cases, the responsibility for this is placed upon the prosecutor who, in the interests of operational efficiency, is able to dispose of cases more quickly and less expensively than the court system. In the Netherlands, the interaction of these two models was clearly illustrated in the 1990 policy plan. In order to prevent a shift towards lawlessness

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