The Reality of Prosecutorial Discretion: Comments on a German Monograph

Abstract

Prosecutorial discretion no longer reigns supreme in American criminal justice: increasingly demands are made that discretion be confined. In search of inspiration for reform some Americans have turned their views to continental Europe, attracted by reports that prosecutors there are closely supervised in their charging decisions. Of special interest was the puzzling information that, in some European countries, prosecutors are legally bound to prosecute all serious crimes that come to their attention. This system of mandatory prosecution has been studied in its West German variant more than any other (the so-called Legalitatsprinzip) but no consensus arose as to its practical effect on the charging process. As so often happens when one looks through· the transforming screen separating different legal cultures, not only does information vary with different cross-cultural reports but the same information is differently interpreted. The Legalitatsprinzip is sometimes assigned to the level of the symbolic and the exhorative, other times to the sphere of the "operational." While some claim that tight control over German public prosecutors is a "myth," others maintain that the idea of mandatory prosecution is reflected in actual practice, signaling an important difference betwen the two systems of criminal justice. In some aspects the ensuing controversy is reminiscent of the lively· debates about what counts as reality conducted between Don Quixote, over-aware of the loftier sides of things, and Sancho Panza, sensitized to the practical.