Book Review: Discretionary Criminal Justice in a Comparative Context
| Author | Andrea Lehner |
| Published date | 01 March 2016 |
| Date | 01 March 2016 |
| DOI | http://doi.org/10.1177/203228441600700110 |
| Subject Matter | Book Review |
Book Reviews
130 Intersentia
Michele Caianiello & Jac queline S. Hodgson (eds.), Discretionar y Criminal Justice
in a Comparative Context, Du rham: Carolina Academic Press, 2015, 258 pages
e book deals with t he issue of discretion in various cr iminal justice systems r anging
from the United States with a sy stem of adversarial cr iminal procedure to a v ariety
of c ontinental European cou ntries with orig inally non-adversar ial (so-called
inquisitorial) trad itions. As an interesting complement, China is covered as well. e
publication is the result of a conference on dis cretionary just ice held in Ravenna in
2013 organised by the Universities of Bologna, Nort h Carolina, Warw ick and Basel.
e Introduction by Hodgson ser ves as a n over all c ross-c hapter analy sis. At the end of
most chapters a helpful bibliography for fu rther reading can be found.
Part I of the book forms t he basis for the further chapters and il lustrates the issue
of investigative and prosecutorial di scretion versus the principle of mandatory
prosecution (“ legality principle” ). e following parts dea l with two features t ypical
for the adversarial tr adition of the Anglo-American crimi nal procedure: instruments
of negotiated justice and exclusionary r ules on evidence. e fact that the cri minal
justice systems of most countr ies covered in this book have thei r roots in the
inquisitorial trad ition shows the growing adoption of legal i nstruments from t he
Anglo-American tr adition into these systems . Although a good mi x of states is
covered, it would have been a valuable addition if the book had conta ined a chapter on
the legal systems of t he United Kingdom, as the legal i nstruments on negotiated
justice and exclusion of evidence have their root s there.
e rst chapter of part I of the book is on the Spanish s ystem of discretionar y
justice at the initiat ion of a criminal i nvestigation. Vad e ll disti nguishes bet ween the
di erent actors who are empowered to decide to open an investigation a nd the existing
methods how to initiate such an investigation. Although some provisions allow the
di erent actors to exercise discretion, the Spa nish crimi nal procedure stil l is
predominantly governed by the legal ity principle. e proposa l for a new code of
crimina l procedure from 2013 will however extend t he possibilities of the publ ic
prosecutor to exercise discretion.
In the following chapter Beale a mongst others describes the s tructures of
prosecutorial authorities a nd the education and selection of prosecutors in the United
States, France and Germany. e chapter a lso includes well elaborated conclusions
which provide a comparative in-depth a nalysis of all three states. In c hapter four t he
author analyses the de velopment of the lega lity principle in Italy. Although Italy has a
very strong tradition of mandator y prosecution, there has been a shi towards
di erent forms of dis cretion. Ruggeri comes to the conclusion that the Ital ian system
today is very simi lar to systems of countries rooted in t he Anglo-American tradition.
In part II the authors d iscuss issues on negotiated justice in Spai n, China and Italy.
Bachmaier gives a detailed a nalysis of the legal framework and prac tice regarding plea
agreements in Spain. She uses the term plea agreements instead of plea barga ining as
under the Spanish ru les there should be no bargain ing between the pa rties but only
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