Research On Judicial Review Of Prosecutorial Discretion’s Abuse In The United States

U.S.prosecutorial discretion as a core power of criminal justice plays a role in the criminal judicial practice.As the change of social environment,the prosecutorial discretion has been changed from weak to strong over times,until now,there is almost no limit on it.In the United States,comparing to the general administrative power,prosecutorial discretion is special because it relates to fundamental rights of citizens during the judicial process.Such particularity is evident in the question of whether judicial review can be carried out against prosecutorial discretion.Based on the traditional separation of powers’ theory,the Federal case law of the United States states that judges should not over-intervene in prosecutorial discretion.In practice,there are also many cases showing that it is not appropriate to restrict the exercise of prosecutorial discretion through judicial review.However.power without supervision will be abused,which will lead the prosecutors violate professional ethics or even the law when they exercise their powers.Such misconducts by prosecutors will not only weaken the public’s trust to the legal system,but also undermine the court’s efforts to pursue justice.With the rise of the victims’ rights and interests protection movement,the society is increasingly concerned about the public interest,and there are some cases of judicial review on prosecutorial discretion’s abuse in the United States.Although the judicial review is difficult to institutionalize due to many reasons,the judicial review on the abuse of prosecutorial discretion is an unavoidable topic in the judicial practice.Thus.through the judicial review on the prosecutorial discretion’s abuse,this paper examines the prosecutorial power’s restriction,and the relationship between prosecutors and judges.aiming to provide experience for criminal legislation and judicial practice in China.The first part of this paper focuses on the relationship between the U.S.prosecutors and judges.First of all,combined with the development and change of American social background.the status and role of American prosecutors and judges in different historical stages in the whole national power and judicial structure is analyzed.After that.from the different perspectives of conceptual power distribution and dynamic power varation.the ideal form and practice of the relationship between the U.S.prosecutors and judges would be distinguished and explained.The second part examines the abuse of prosecutorial discretion in the United States.The discriminatory selective,the retaliatory prosecution,the uncontrollable pre-trial diversion and the unbalanced plea bargain are four basic forms of prosecutorial discretion’s abuse,which have caused a lot of direct or indirect harm,so it is necessary to strengthen the judicial review of prosecutorial discretion’s abuse.The third part discusses and analyzes the constitutional grounds of American judicial authorities against the abuse of prosecutorial discretion and the factual standard of identifying the abuse of prosecutorial discretion in some extent through some influential judicial review cases which restrict the prosecutorial discretion’s abuse in American criminal judicial practice.The fourth part talks about the bothered judicial review of prosecutorial discretion’s abuse from aspects of the judicial principle of system theory and the legal practice,and then combining the academic research and related cases’s referee,in order to look for the judicial review of procuratorial discretion’s abuse in the future.With the introduction of leniency system of guilty plea,the power of the Chinese prosecutors will expand much more.Therefore,aiming at the prosecution which will be abused in the future or has been abused right now,the epilogue advocates the correlation analyses injected into the Chinese criminal practice’s context,in order to find the way how to balance the power between prosecutors and judges.At the same time,the analyses also means a lot to the scientific disposition and effective restriction of procuratorial discretion in our country.