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Testing the Limits of Prosecutorial Discretion

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The following is a guest post by Andrea Vitalich:

As a person who has been proud to serve the public as a prosecutor for over 15 years, I have long believed that the most critical decision a prosecutor makes in any case is the charging decision.  In making this critical decision, a prosecutor must try to accurately describe the scope of the defendant's conduct, to charge the case in a manner that will result in a punishment that is proportionate and just, and to avoid overreaching.  In other words, a prosecutor should always serve justice.  If a prosecutor does not serve justice, and makes a charging decision that is unjustly lenient or unreasonably harsh, that prosecutor will serve only to shake the public's confidence in a system of which many are already distrustful.
 
That said, it is sometimes the case that the only just decision is not to charge a crime at all.
 
These principles were brought into sharp focus when I read this story about the prosecution of several Italian scientists, who are charged with manslaughter.  Their "crime," according to the prosecutor, was the failure to issue a sufficiently urgent warning about the possibility of an earthquake following a period of seismic activity in a region where -- six months later -- a serious quake killed over 300 people.

While the deaths of these innocent people is unquestionably a tragedy, what theory of criminal liability supports the charge of manslaughter in these circumstances?  Was the scientists' conduct (or, in this case, the lack thereof) criminally negligent?  Certainly, if the scientists had known with any degree of certainty what would occur in six months' time, they would have shouted urgent warnings from every rooftop.  I'm no scientist, but even I understand that predicting an earthquake is about as exact a science as predicting the stock market these days.
 
What overarching purpose does this prosecution serve?  Certainly not deterrence, unless the conduct to be deterred is the issuance of any information whatsoever by any Italian scientists in the future.  Not retribution, because the scientists did not cause the deaths, even in the most Rube Goldbergian view of the universe.
 
Perhaps if the Italian prosecutor had asked him- or herself what I believe is the most crucial question, this prosecution would have never begun.
 
That question is:  Will this charge serve justice?
 

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