by Michael Tonry (ed.). Chicago: The University of Chicago Press, 2012. 400pp. Cloth $90.00. ISBN 9780226009674. Paper $35.00 ISBN: 9780226009704
Reviewed by J.Michael Olivero., Department of Law and Justice, Central Washington University. Email: Olivero [at] CWU.EDU
On an international level, prosecutors are one of the most powerful figures in any country’s criminal justice system as they decide, among other things, charging decisions and how vigorously to pursue a conviction and nature of the conviction. Michael Tonry’s PROSECUTORS AND POLITICS: A COMPARATIVE PERSPECTIVE provides a very interesting cross-cultural analysis of prosecutors. Cross cultural comparisons, among other things, allow the reader an insight and means to question their own beliefs and ideological perspectives. In addition, it provides a means to assess strengths and weaknesses of theories and methodologies. (See for example, Eyerman and Strom, 2006; Ivkovic, 2004; Jiang, Lambert, Wang, Saito, and Pilot, 2010). There is little cross cultural literature focusing on the office of prosecutor (See also, Joutsen, 1988). This seems to be a weakness in the field addressed by this work. Tory’s volume provides insight into the strengths and weaknesses of several justice systems pertaining to the office of prosecutor, as well as provides analysis of the values of equality, justice and rationality and the means to achieve them.
The edition contains eight chapters written by experts on prosecutors in national and state level justice systems. The first chapter is written by Tonry. He provides a framework to analyze the differences in systems and prosecutors in the chapters to follow. One such difference is the principles of legality and expediency. In legality principled systems, in contrast with expediency principled jurisdictions, prosecutors have no discretion on individual cases. The legality principle is also the equality principle that mandates that comparably situated people be treated in comparable manners, rather than dispose of the case on a discretionary basis, such as extenuating circumstances. In most countries personal or political preferences are fundamentally inappropriate considerations in making prosecutorial decisions. Inquisitorial systems are more likely than accusatorial systems to operate under the legality principle.
Another important distinction has to do with the structural location of the office of prosecutor. In some countries, prosecutors are magistrates. As such, they are formally part if the judiciary and can at certain times in their careers be either a judge or prosecutor. In other countries, prosecutors are members of the executive branch of the government. This has important implications. For example, in some countries, the prosecutor’s office could come under the direction of a local and politically appointed head and politically founded decision making. [*129]
A third important different dimension is the selection, recruitment and training of prosecutors. Some countries have potential judges and prosecutors begin to specialize in law school. In contrast, others do not have specialized university training and are typically recruited after law school and trained on the job. This has important ramifications. Prosecutors who are in the judiciary as a career track see themselves as judges and apply the law in the manner of a magistrate and are more immune to public and political pressure. Prosecutors working in adversary systems with expediency values are more likely to dispense their duties in a moralistic manner and to care more for convictions than exonerations.
The second chapter is written by David Johnson and concerns Japan’s prosecution system. Johnson outlines the evolution of Japanese justice. Until recently prosecutors had significant discretion and criminal justice was actually prosecutor’s justice.. He goes on to describe the structure of Japan’s procuracy and prosecutorial unity and independence, the role of prosecutors and strengths and weaknesses in the way Japan system. Like the United States, in Japan, the prosecutor decides whether and what to charge a criminal defendant with.
The third chapter is written by Ktzytof Krajewski and concerns prosecutors in Poland. He provides the historical evolution of the Polish procuracy and its attachment under the control of the Ministry of Justice. Until recently, the Ministry of Justice was heavily attached to the Communist Party. As such, the prosecutor’s office was heavily influenced by political considerations including politically motivated investigation and charges. Efforts to reform the situation include independence and mandatory prosecution. Prosecutors are active in criminal investigations and mandatory prosecution does not allow discretion in minor cases and vigorous prosecution ensues.
The fourth chapter focuses upon the Dutch Prosecution Service written by Henk van Bunt and Jean-Louis van Gelder. Today, the office of prosecutor is a powerful figure in Dutch criminal justice. The prosecutor has sole discretion to bring criminal cases to court and the nature of charges. In addition, they can dispense with cases independently through settlements. More cases are settled by the prosecutor’s office than in court. In fact, prosecutors can now impose incarceration for specific offenses without the involvement of a judge.
Prosecutors in Sweden, the subject of chapter five, do not obtain their positions through political processes. Instead, according to Petter Asp, they are selected through meritorious review which does not involve political considerations. Swedish law requires an investigation and trial if there is evidence of a crime and the prosecutor plays an active role in investigating the crime. However, there is also a principle of impartiality that mandates that evidence that exonerates the defendant is pursued and presented. In Sweden, cases are disposed of in such a manner that it does not matter who the persecutor is or where the case it, all defendants are treated equally.
The sixth, seventh and eighth chapters, [*130] all have to do with prosecutorial offices in states within the United States; David Burner writes on Washington State, Ronald Wright writes on North Carolina, and Marc Miller and Samantha Caplinger write on Arizona. One of the significant issues and differences with the previous chapters is that the prosecutor offices in the United States are locally organized and concerned, in contrast with countries where prosecution takes on international and national characteristics. In every developed country except the United States, prosecutors are nonpartisan, apolitical civil servants, whereby decisions are based upon their merits without regard to public or political opinion. In the Unites States, the vast majority of prosecutors are elected officials, deflecting against notions such as impartiality, objectivity, and isolation from political considerations. Instead, in the United States, prosecutors proudly boast that they reflect local political and cultural values. As a matter of constitutional law decided by the Supreme Court, prosecutorial decisions including whether to prosecute or dismiss charges are not reviewable by the courts. Charges and punishment become not what the defendant did, but where he did it. Due to constitutional safeguards of autonomy for prosecutors, injustice and unequal treatment are inevitable. The worst allow partisan and ideological considerations into decisions, as well as political implications for their political careers. In a volume seeking to identify practices that lead to greater rationality and equality, and less discretion, Arizona stands out as the jurisdiction needing the most attention.
Tonry set out to fill a gap in our empirical understandings of how prosecutors’ offices are organized and how it matters for justice and equal treatment. The range of variation across nations and states make this a valuable first effort. All in all, the book is very well written and organized. If I was to provide any criticism, it would have been nice during the opening chapter had the editor and author provided a comparative table of the various countries and elements of prosecution. That minor suggestion aside, the book is well worth reading and shows the strengths of cross cultural comparisons.
Eyerman, J., and K.J. Strom. 2006. CROSS-NATIONAL COMPARISON OF INTERAGENCY COORDINATION BETWEEN LAW ENFORCEMENT AND PUBLIC HEALTH. Rockville: National Institute of Justice.
Ivkovic, S. K. 2004. “Evaluating the Seriousness of Police Misconduct: A Cross-Cultural Comparison of Police Officer and Citizen Views.” INTERNATIONAL CRIMINAL JUSTICE REVIEW 14: 25-48.
Jiang, S., E.G. Lambert, J.Wang, , T. Saito,and R. Pilot. 2010. “Death Penalty Views in China, Japan and the U.S.: An Empirical Comparison.” JOURNAL OF CRIMINAL JUSTICE 38:862-869. [*131]
Joutsen, M. (1988). Role of the Prosecutor: United Nations and the European Perspective. In H. Williams, REPORT OF THE INTERNATIONAL CRIMINAL JUSTICE SEMINAR HELD AT THE LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE (pp.80-89). Brookfield, VT : Gower Publishing Co.
Copyright 2014 by the Author, J. Michael Olivero.