This report on discretionary justice is in the context of the criminal justice system. It will also attempt to discuss prosecution and social class and the failure of the electoral system. This reporter admits to heavily drawing from a work of Angela J. Davis entitled “The Power and Discretion of the American Prosecutor”. Relating Ms. Davis analyses and claims to the Philippine setting is the reporter’s humble contribution. Ms. Davis’ many works include works treating on the powers and independence of prosecutors, and prosecution and racial discrimination in the U.S.
Prosecutors – called fiscals in the past, at times “fixcals”, are considered as the most powerful and influential criminal justice officials. Why so? Because they exercise the unique power to charge, i.e. the power to charge an individual with a criminal offense, and decide what the charge should be. In being so empowered, they control the direction and outcome of all criminal cases. In addition, they also preside and control the plea-bargaining process. Plea bargaining will be discussed later in this report.
The power to charge. As earlier stated, the power to charge an individual with a criminal offense, and decide what the charge should be rests with the prosecutor. While a policeman or any law enforcer arrests a person when he has probable cause to believe that the person has committed a crime, the critical decision to formally charge the person that he has arrested is left to the prosecutor who has almost unlimited amount of discretion in determining the matter. The prosecutor’s decision is critical – because, aside from dealing with the questions of “to charge or not to charge?”, the other decision to make is that of “to charge with what?” - spells the degree of the risk that the accused may lose his liberty, or to have to pay fines and damages.
Criminal law scholars widely agree that, as in the American set-up, grand juries tend to follow the lead and direction of the prosecutor.
At certain points in the Leviste case, particularly the death of Gov. Leviste’s trusted employee, the family of the deceased strongly objected to the charges initially filed against Gov. Leviste which they thought as watered down, if not downright erroneous, and that would allow him lower sentencing if at all their case against him prospered. Recently, former Pres. Estrada was shown on nationwide television as he bewailed the definition of the plunder charges filed against him in the light of the Mark Jimenez-Hernani Perez, et. al. case.
A prosecutor may, even in the face of sufficient evidence to prove the case beyond reasonable doubt, choose to dismiss a case. In some American state, neither the judge nor any member of the community would have standing to challenge this decision. In the Philippines, the family and lawyer(s) of the victim usually make noise, go to media or seek assistance from higher authorities.
Even as the prosecutor decides to formally charge an individual, a wide arsenal of possible charges is available from which related charges may be drawn depending on the facts of a case.
For instance, a driver to hits and kills a crossing pedestrian at night may, in addition to the homicide thru reckless impudence case, may also be charged with driving under the influence of drugs or other prohibited substances, possession and/or distribution of drugs or other prohibited substances, “hit and run”/escaping the scene of the accident for which he is partly or wholly responsible – all depending on the facts of the case (and/or the discretion of the prosecutor). Trumped up charges?
This matter of charging with more than one offense will again surface in the discussion of plea bargaining later in this report.
Depending on the laws violated as well as on the mandatory jail time, the number of cases and the type of cases filed will also determine the eligibility of a convicted person to probation. Probation is the conditional suspension of sentence of a person convicted, but not yet imprisoned; after promising good behavior, he is palced under the supervision of a probation officer. (Webster)
Plea bargaining. This process, where defendants may plead guilty instead of exercising their right to trial, is entirely controlled by prosecutors.
After a defendant is charged with one or more offenses, a prosecutor may offer the defendant a “deal” whereby the prosecutor would agree to drop one or more charges if the defendant agrees to plead guilty to one or more charges. While a defendant, through a lawyer, may negotiate and make a counter offer, the prosecutor gets his way, the only way, the final terms of the agreement acceptable to him.
Some prosecutors have been observed abusing their power during the plea- bargaining process by charging defendants with offenses that carry the greatest penalty (even if they are aware that they may not be able to prove these during trial) if only to push the defendant to plead guilty to a lesser offense.
The plea bargaining process, particularly in the U.S., is widely availed of on account of the risk of going to trial. Charged with several offenses, each carrying long terms of imprisonment, the defendant risks long years of imprisonment. Accepting a plea offer makes him aware of how much time in jail he faces and how much time in jail he can avoid.
It is generally known that most convicted prisoners come from the lower income classes. They are in jail. What is not commonly known is that there may be a significant number of convicts from the lower income classes who are on probation. Also not commonly known is that there may also be a more significant number of convicts from the higher income class who are on probation.
It must be noted that, except in celebrated cases, where the offenders and the victims are politicians, movie personalities, or both, or very rich or very poor but with rich and/or influential patrons, plea bargaining is a private affair. Effecting transparency in the charging and plea bargaining is, therefore, commonly not a concern. These processes are largely performed in private, and legal remedies for victims are expensive, if not inadequate.
Probation may be a preferred form of punishment because it appears to carry less of the stigma of being a convict. It also allows much semblance of liberty, to include the liberty of the convict to continue to work and live with his family. It also denotes that the person on probation, although convicted, is not a habitual offender, merely a usually good person who had been done in a lapse of judgment or in a rare flash of bad temper or had committed a crime in self-defense.
The question is that of how come that more convicted individuals from the higher income classes are on probation; or how come more convicted individuals from the lower income classes are in jail Or is this merely a perception (in view of this reporter’s inability to obtain official data).
Nonetheless, wide public perception about prosecutors and personalities on probation, not to mention how lawsuits can drag through time and drain the limited resources of the not-so-rich have long typified the criminal justice system in the Philippines. The criminal justice system includes the elements of Enforcement, the Courts, Penology and the Community.
Income disparities present varying socio-economic and political advantages and disadvantages for the accused, the victim and the prosecutor. With discrimination in the criminal justice system, such matters as who is the accused, who is the victim, who are the other “stakeholders”, and who is the prosecutor really matters. They”re right. Lady Justice does peep through her blinds. So much so that the better lawyer has also been defined as one who can “talk” with the prosecutor or the one the prosecutor “listens” to; also the one who can “pacify” the victim’s side or survivors.
These income disparities contribute to the vast powers and broad discretion exercised by prosecutors. Poor, uneducated victims, such as the blacks from the American ghetto or the migrant urban poor or even the working class in Metro Manila, may appear to show less interest in prosecution – being less likely to attend meetings and communicate with prosecutors – for reasons largely in the nature of lack of transportation means, inability to take time from work or simple mistrust of the prosecutor’s role in the criminal justice system.
Down the line, police investigators also tend to consider the questions as to “who is the accused, who is the victim, and who are the other ‘stakeholders’”. The answers to these questions tend to greatly influence the quality and depth of their investigation, the outputs of which make up the all-important facts of the case on which prosecutors, in turn, base their decisions “to charge or not to charge?”, and / or “to charge with what?”.
The misuse or abuse of power by prosecutors reflects a “failure of the electoral system”. In the U.S. state and local prosecutors are elected and who serve fixed terms. Even as prosecutors in the Philippines are appointed and not elected, the appointing authority is merely appointed, himself, (Secretary of Justice) by a President who has been elected to serve, govern and appoint good government officials such as prosecutors. The buck stops where?
In effect, Philippine prosecutors are subject to much less accountability than other criminal justice officials. While most prosecutors, we would like to think, perform their duties legally and ethically, their practices and policies produce unjust results. Elected or appointed, prosecutors should have great interest in uncovering inequities and eliminating disparate treatment of criminal defendants and crime victims.
As earlier stated, the processes of charging and plea bargaining are largely performed in private, and legal remedies for victims are expensive, if not inadequate. Thus the electoral system (by which the appointing authority of the appointing authority of Philippine prosecutors is elected) does not operate as an effective mechanism of accountability. Again, this reporter asks, “The buck stops where?”
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