Prosecution: Comparative Aspects

In the United States, the prosecutor is probably the most important decision-maker in the criminal process. The impetus to begin a criminal investigation usually emanates from a private complainant, and it is ordinarily the police who conduct the bulk of investigations; but the determinations whether to charge a suspect, what to charge him with, and what sanctions eventually to impose are made or substantially influenced by the prosecutor. The wide scope of American prosecutors' discretionary power has long remained undetected. It became the subject of scholarly discussion only in the 1970s, in the wake of seminal studies (Miller; Davis), and the debate about the need to limit and control prosecutorial discretion intensified in the 1980s when the introduction of limitations on judges' discretion in sentencing shifted even more power to the prosecutor (see Stith and Cabranes, pp. 130–142). Yet, even though express statutory authority is lacking, the existence of broad prosecutorial discretion is still widely accepted as part of the U.S. legal tradition. Several key features of the U.S. system of criminal justice are indeed dependent on prosecutors' freedom of action. Without it, selective enforcement of criminal laws and diversion of marginal offenders from the criminal process would be impossible, and plea bargaining would be likely to disappear. To demand the abolition or even a radical curtailment of prosecutorial discretion would thus not be realistic, and it would moreover not be desirable to have an overly rigid system of criminal justice lacking the prosecutor's office as a filter for those cases which are nominally criminal but, for various reasons, do not merit conviction and punishment.

This does not mean, however, that the American prosecutor's discretionary power should have to remain as broad and uncontrolled as it has traditionally been. In the United States, the fact that the great majority of state prosecutors are elected and thus responsible to the people is widely regarded as sufficient to control their powers. Although this form of control may be useful with respect to overall law enforcement policy, it has little impact on prosecutors' day-today decision-making and on their treatment of individual cases. The American prosecutor's political responsibility, which becomes effective only when and if the prosecutor seeks reelection, thus tends to mask the need for more direct limits on his discretionary powers as well as for controls upon decisions the prosecutor and his or her assistants make in individual cases. Foreign legal systems have developed various mechanisms in that regard. In some countries, statutes explicitly limit prosecutors' discretionary authority, and in many legal systems, the prosecutor is subject to various forms of control by courts, victims, or private citizens.

Restrictions on prosecutorial discretion of course do not exist in a vacuum. Their significance depends not only on the allocation of functions within the prosecutorial system but also on, for example, the general orientation of the criminal process ("truth-finding" versus conflict resolution), the relationship between prosecutors and courts, career structures within the prosecution service, case loads, crime rates, historical background, and popular expectations and conceptions of the criminal justice system. Before one makes changes based on a comparative perspective, one should therefore carefully assess the ramifications such changes may have for the system as a whole: even a slight reduction in the present scope of prosecutorial authority may lead to an unforeseen increase in some other agent's formal or informal powers. Only with that caveat in mind should recommendations be based on foreign ways of organizing prosecution, even when foreign models appear to be promising examples of more predictable and equitable ways of administering criminal justice.

This article focuses on the prosecutorial systems of four European countries: Austria, England, France, and Germany. Each of these countries has developed a different mode of organizing and controlling the prosecution function.