The traditional prosecution is a feature of the adversarial justice system in common law setting or in inquisitorial civil law. Basically, prosecutors are tasked with the responsibility of representing the people against persons charged with violations of criminal laws either at federal or state levels. Based on this, the traditional prosecution system has been applied extensively with varied outcomes. Not only has the extended application showcased some benefits of traditional prosecution, but it has also stressed some of its disadvantages. Accordingly, it is necessary to examine the existing alternative prosecutorial approaches in terms of features and potential drawbacks.
A conviction record is a distinguishing feature of traditional prosecution because it has an effect more punitive than sentencing. It is doubtless that crimes must have consequences, but the punitive approach is ineffective in some cases of criminality. The term diversion refers to strategies aimed at keeping certain offenders away from the formal processing of the criminal justice system. Among other things, avoiding incarceration lowers costs in the justice system, reduces caseloads, recidivism, labelling and stigma. Such benefits can only be realized when the diversionary tactics are contained in programs such as probation, restitution, fines, and among others, community service (Hess, Orthmann & Cho, 2018).
Delegate your assignment to our experts and they will do the rest.
Court-ordered community service allows the offender to access a lesser sentence, while the community benefits from the work performed by the offender and the cost reduction occasioned by the avoidance of incarceration. A criticism leveled against such service is that sometimes its application is not suitable to the offense (Morse, Roskies & John D. and Catherine T. MacArthur Foundation, 2013). Restitution is a payment made by the offender to the victims of their criminality. Such a court direction is commonly issued in cases where the victims have suffered financially because of the crime, hence, the payment is geared towards restoring them financially to the point where they were prior to the crime. Notably, payments are made to the victims and not to the courts. It is highly likely that such payments will be financial, therefore unable to fully restore the victim of the crime. Conversely, this form of punishment may lack the desired punitive effect in cases involving offenders from wealthy backgrounds for they would be able to easily access funds for the restitution payments without experiencing the desired effect.
Probation facilitates the release of a defendant back to community life but with some restrictions, such that offenders are not able to function as normal citizens. Such release is conditioned on good behavior and the acceptance of supervision among other things. Notably, what distinguishes parole from probation is that the former in the case of the former, conditional release is premised on serving a portion of the sentence in confinement (Hess, Orthmann & Cho, 2018). Court-ordered probation entails having an offender under a court-appointed supervisor and other probation-related conditions such as observing good behavior, regular reports to the probation officer, avoiding criminal associations and places of disrepute among other things. Under this approach, probationers have their release conditioned on their continued good conduct and rehabilitative efforts such violation of probationary terms occasions either a revision or revocation of the terms (Morse, Roskies & John D. and Catherine T. MacArthur Foundation, 2013). Evidently, this approach mandates offenders to observe standards that are above those of the average citizen while imposing restrictions against leading a normal life.
As tools of diversion, in addition to compensating the state for the offense, fines have both a punitive and deterrent effect on the offender (Hess, Orthmann & Cho, 2018). Fines are financial in nature and this presents a limitation of its punitive and deterrent elements if the offender has access to considerable financial resources for such access erodes the desired effects in such cases.
A deferred sentencing is a situation where the court gives the defendant an opportunity to complete a probationary period prior to sentencing (Jacobs, 2015). The practical effect of the probationary period is that of delaying the sentence and the events informing such a conclusion is significant to whether the sentencing will be implemented. In other words, if the defendant abides by all the probationary conditions, then the court has grounds to end proceedings. Conversely, if the defendant proves unable to respect the probationary conditions then the court shall proceed to sentence the offender. Subject to jurisdiction, offenders may have a permanent record of the crime on their criminal records even after successful completion of the probation and dismissal of charges.
Deferred prosecution refers to informal agreements between defense lawyers, prosecutors, and defendants. This agreement bases prosecution of the defendant on circumstances such as criminal history and the degree of difficulty attached to the case (Jacobs, 2015). However, to obtain a deferred prosecution, the defendant must admit their guilt and waive those constitutional rights that are protected when making a similar plea under a judge. Furthermore, the defendant must abide by the terms of the agreement which might include counselling and community service work. Notably, under this agreement, the defendant must agree not to make any serious violation of the criminal laws (Jacobs, 2015). Failure to which, the prosecutor can refill the original case with the defendant’s confession. Here, it seems that while the agreement might be well-intentioned, it also has pre-conditions that mandate offenders to observe standards above those of the average citizen. Unlike the above-mentioned deferred sentencing, a successful completion of a deferred prosecution makes defendants eligible for complete expunctions of the crime from their criminal records (Jacobs, 2015).
An analysis of the diversion programs discussed in the foregoing paragraphs highlights at least three benefits of such a program. It is doubtless that these programs are meant to promote the rehabilitation of offenders as this is underscored by the provision of services that seem to target the underlying causes of criminal behavior. As mentioned above, the effect of a conviction lasts longer than the sentence due to underlying social and economic conditions. Diversion programs are designed to preserve offenders’ chances of having a normal life, chances that are drastically eroded when they acquire criminal records. Among the conditions of these programs are financial payments in the form of fines, restitution, and court expenses. Not only do diversion programs keep offenders in the community, but they prevent the disruption of families and employment which enable offenders access funds to the above-mentioned meet program conditions.
It is doubtless that these programs are designed to meet public benefits that go beyond easing cost pressures on the criminal justice system. Alongside such benefits, the programs also depend on tax-payer dollars to operate. Therefore, in cases where the programs register failure then there are dire outcomes not only for the offenders, but also for the tax-payers, victims, and the entire criminal justice system. Furthermore, considering the design of both deferred sentencing and deferred prosecution, it seems that diversion can be more costly than normal processing due to the prospect of reprocessing and incarcerating offenders. Again, in both programs, the offenders are expected to uphold standards above those of the average citizen on one hand, yet on the other hand, there are limitations preventing them from living as normal citizens.
Alternatives to traditional prosecution discussed herein focus on prison-diversion programs currently in practice. To the extent that criminal justice policymakers and system actors offer offenders, at each stage of the process, alternatives that avoid the full impact of the penal code, such programs are not unique. However, as noted above there is merit to some of the criticism against diversion programs. Then again, it is improper for every offense to draw the full force of law in response because the law is meant to be punitive and rehabilitative. Among other things, recidivism is the symptom of the lack of effective rehabilitation yet it is one of the biggest benefits of the diversion programs discussed herein.
References
Hess, K. M., Orthmann, C. M. H., & Cho, H. L. (2018). Introduction to law enforcement and criminal justice . Stamford, CT: Cengage Learning
Jacobs, J. B. (2015). The eternal criminal record . Cambridge, Massachusetts: Harvard University Press
Morse, S. J., Roskies, A. L., & John D. and Catherine T. MacArthur Foundation. (2013). A primer on criminal law and neuroscience: A contribution of the law and neuroscience project . Oxford: Oxford University Press.
