Compulsory prosecution

Compulsory prosecution is an aspect of certain justice systems in which the prosecutor is required to press charges if there is sufficient evidence to support a conviction. This stands in contrast with discretionary prosecution, where prosecutors are given a wide latitude whether and how to prosecute.

Compulsory prosecution system is used in Germany.[1] It has also been required by the Constitution of Italy since 1948.[2] In the United States and other countries that do not require compulsory prosecution, the lack of such a requirement has a tendency to encourage the practice of plea bargaining.[3]

A 2012 comparison in the context of game theory suggests "that mandatory prosecution outperforms discretionary prosecution when evidence transmission from the prosecutor to the judge is accurate and/or when the cost of litigation incurred by the prosecutor is large."[4]

  1. ^ Herrmann, Joachim (1973–1974), The Rule of Compulsory Prosecution and the Scope of Prosecutorial Discretion in Germany, vol. 41, U. Chi. L. Rev., p. 468
  2. ^ Carlo Guarnieri (January 1997), "The judiciary in the Italian political crisis", West European Politics, 20 (1): 157–175, doi:10.1080/01402389708425179
  3. ^ JE Ross (2006), "The Entrenched Position of Plea Bargaining in United States Legal Practice", The American Journal of Comparative Law, 54: 717–732, doi:10.1093/ajcl/54.suppl1.717, JSTOR 20454559
  4. ^ Nakao, Keisuke; Tsumagari, Masatoshi (2012), "Discretionary vs. Mandatory Prosecution: A Game-Theoretic Approach to Comparative Criminal Procedure", SSRN Electronic Journal, Elsevier BV, doi:10.2139/ssrn.2015779, ISSN 1556-5068