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The Decision to Prosecute (Term Paper Sample)

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I WAS REQUIRED TO WRITE A TERM PAPER FROM SELECTED 9 SOURCES.

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The Decision to Prosecute
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Deciding to terminate proceedings or whether to prosecute is one of the most crucial steps in the process of prosecution. Before the decision is made, there are important determinants which must reflect a sound acquaintance of the law and proper consideration of the victim’s interests, usually the accused as well as the public at large. Essentially, prosecutions which are not substantially founded in fact or law oftentimes expose citizens to expense, embarrassment of trial, and anxiety (Cole, 1970). The emerging consequences of this situation can be very grave. As a result, considerable efforts must be put in place to ensure that the prosecution process is carefully undertaken and that the right decision is arrived upon. Making a wrong decision of not to prosecute, or conversely a misinformed decision to prosecute, tends to undermine the community’s confidence in the system of criminal justice.
It is the work of the prosecuting attorney to administer prosecution within the framework of a local political system. This analysis is grounded on two theories. First, that any process in the legal arena is best understood in terms of a larger political system’s subsystem (Cole, 1979). Due to this assumption, there is a lot of emphasis on goals and interaction of individuals involved in making of decisions. Second, and nearly similar to the first, is the assumption that political considerations, broadly conceived, assert that the degree or extent to which good justice can administered is hopefully dependant on the legal system. By putting focus on social and political interrelations, it is expected that making of decisions in the prosecuting attorney’s office will be perceived as a principal component in the authoritative values’ allocation (Corwin et al., 2012) While making a careful observation of the interrelated activities in the legal process of organizations, one might be led to wonder what kind of ramifications one of these organizations will face if it fails to avail the required information to the other organization. For instance, if the police deny the prosecutor information pertaining to the crime’s commission, what are the possible sanctions or rewards that are likely to be brought towards them. In this situations, it will be important consider whether organizations can still maintain their independence and bureaucratic accounting that, in a sense, helps to keep track of the allocated resources to a given agency, as well as the support returned (Ebbessen & Conecni, 1975). These and more are the kind of questions which must be addressed when decision making is perceived as an output of a system of exchange.
Investigators and the police are responsible for making enquiries into crime allegations and deciding on how their resources are deployed (Albonetti, 1987). This is inclusive of the decisions to continue or start an investigation and nature or scope of investigation. The role of the prosecutors during investigation of crime allegations is to offer appropriate advice o the police concerning possible evidential requirements, and lines of enquiry, and assist in procedures involved in pre-charge (Cole, 1970). In investigations done a large scale basis, the prosecutor might be given the responsibility of advising the overall strategy of investigation, including decisions to narrow or refine the extent of criminal conduct as well as the number of suspects being investigated (Garland, 2001). This is designed to help the investigators and police to work within a certain schedule and finish investigations within a reasonable duration and to ultimately build an effective case for prosecution.
Each step in the prosecution process within the Criminal Justice System is equally important and contains several factors that influence or determine the decision made. One of the determinants revolves around the power of bargain in the "trial shadow" that is hinged upon the expected trial outcomes (Bushway & Redlich, 2012). This is the primary theory which is used by non-criminologists to form an explanation of the variation in the discount of plea in favor of the defendants that emerge guilty. Prosecutors are obliged to act within the existing criminal Justice system. For example, it is expected that guilty defendants are supposed to receive relatively shorter sentences than equivalent people, observably, convicted at trial. Here, the implication is that the guilty defendant should receive a certain penalty for attending the trial, or alternatively a discount after pleading guilty (Ball, 2006). Across individual cases, there is a variation of the pleas discount size. Scholars in the realm of criminology use perspectives like focal factors to bring up arguments that this sort of variation can be well understood by factors of case level, such as criminal history, type of crime, probability of conviction, race, and institutions factors including workload and workgroup norms (Garland, 2001).
Outside the scope of criminology, "bargaining in the shadow of trial" is the fundamental model used to understand the plea discount variation. In this situation, a defendant is pronounced guilty if the sentence offered is equal or less than the defendants expected trial value (Bibas, 2004). A defendant who is risk-neutral is affected by the level of uncertainty in a choice. As a result, this sort of individual is usually bothered by the choice going to trial or accepting the bargain of the plea (Albonetti, 1987). Contrastingly, a risk-averse defendant is likely to prefer the plea bargain certainty rather than proceed to trial. This he/she can do even if the plea bargains’ expected value is higher than when the person goes to trial. Regardless of the manifest preference of this theory within the legal literature, until 2012, there were no clear tests. Legal scholars including Bibas (2004) also began raising important concerns about the model’s face validity. At is basic incarnation, ,this theory is hinged on the assumption that actors in the area of criminal justice system are bound to act rationally; however, today psychologist and behavioral economists routinely reveal that people and various professions within the criminal justice system, don’t necessarily act in absolutely or strictly rational way. So far there are no system attempts which have been made to integrate such ideas into the "shadow" model (Bush way redich & Norris, 2012).
Using social science, scholars have made an attempt to analyze and improve the criminal justice system. Sometimes factors such as risk-seeking behavior displayed by the defendants are considered by the prosecuting attorney during the prosecution process (Garland, 2001). Notably, prosecutors have also strayed as a result of some theories and models of prosecution. Prosecutors are prone to coerce defendants plead guilty by trying to evade the trial cost which in turn lowers the discount of the plea below the break-even state (Ball, 2006). The prosecutor might therefore want to pronounce a sentence which will be over the plea decision’s upper bound: however, the shadow model states the defendant should not accept that kind of an offer (Bushway & Konecni, 1975). This factor is even more unclear for judges. This is because judges are often not involved directly except in situations where a plea bargains are not reached, for a highly selected set of cases.
Contemporary scholars agree, almost unanimously, that there is a huge amount of discretion that an American prosecutor posses. Moreover, they also agree that such discretion is potentially caused by discrimination portrayed in the form of unwarranted disparity. Prosecutors in America use their own discretion to make charging decisions, seek death penalty, and negotiate plea agreements (Cole, 1970). The issue of racial discrimination is among the most studied topics in the American system of criminal justice. Research reveals that offender comprised of the black community represented in the populations of the prison disproportionately (Edkins, 2011). While the Black Americans account for only 13% of the national U.S population, they form 45% of the whole population of prisoners incarcerated in federal prisons (Edkins, 2011). There is little research and information on decision states between sentencing and arrest. Notably, the previous research barely focused on ethnic and racial differences in the defendant’s processing. A bulk of the research focused on decisions outcome such as sentencing and bail but not processing of defendants, whether it plead guilty or went to trial (Ball, 2006). Surprising the most remotely studied practices of plea bargaining are the decisions to minimize the number of charges.
Within the framework of an exchange system, the power factor is mainly dependent upon the organization’s ability to create good relationships with clientele which will enhance and support the needs of a given agency. In as much as independence is a major issue that characterizes the legal system, there is also competition emerging from other agencies for purposes of support. Since many organizations exist in a scarcity economy, the power status of the organization must be favorable in relation to its target clientele (Albonetti, 1987). Although the prosecutor has discretion to determine the final disposition of cases, this autonomy is limited by the fact that he has to depend on police for evidence and inputs to the case systems. As a consequence, the prosecuting attorney does not have the resources for investigation required to implement this form of affirmative power and control over the case types, which are brought to him (Cole, 1979). Nevertheless, in this kind of a relationship, the prosecutor still has countervail...
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