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The Charging Function of the Prosecutor

Sentencing and Parole Review Task Force. The Charging Function of the Prosecutor. Dean Mary Galvin, Retired State’s Attorney Kevin T. Kane, Chief State’s Attorney. The Public Prosecutor. 1705 - Connecticut First by Statute Replaced Private Prosecutors Responsibility to Do Justice.

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The Charging Function of the Prosecutor

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  1. Sentencing and Parole Review Task Force The Charging Functionof the Prosecutor Dean Mary Galvin, Retired State’s Attorney Kevin T. Kane, Chief State’s Attorney

  2. The Public Prosecutor • 1705 - Connecticut First by Statute • Replaced Private Prosecutors • Responsibility to Do Justice

  3. The Charging Function

  4. 3.8 Special Responsibilities Of the Prosecutor The prosecutor should exercise his/her discretion to file only those charges which he/she considers to be consistent with the interests of justice.

  5. NDAA Prosecution Standards

  6. NDAA Charging Standards Factors which may be considered in the charging decision include:

  7. Factors to Consider • a. The probability of conviction; • b. The nature of the offense; • c. The characteristics of the offender; • d. Possible deterrent value of prosecution to the offender and society in general;

  8. Factors to Consider • e. Likelihood of prosecution by another criminal justice authority; • f. The willingness of the offender to cooperate with law enforcement; • g. Aid to other criminal justice goals through non-prosecution; • h. The interests of the victim;

  9. Factors to Consider • i. Possible improper motives of a victim or witness; • j. The availability of adequate civil remedies; • k. The age of the offense; • l. Undue hardship caused to the accused;

  10. Factors to Consider • m. A history of non-enforcement of a statute; • n. Excessive cost of prosecution in relation to the seriousness of the offense; • o. Recommendations of the involved law enforcement agency;

  11. Factors to Consider • p. The expressed desire of an offender to release potential civil claims against victims, witnesses, law enforcement agencies and their personnel, and the prosecutor and his personnel, where such desire is expressed after the opportunity to obtain advice from counsel and is knowing and voluntary; and • q. Any mitigating circumstances.

  12. Diversionary Programs

  13. Diversionary Programs • Designed to suspend prosecution • Require education, treatment, community service, or other programs • Which, if completed successfully, will result in the suspension of the charges

  14. Alcohol Education Program (AEP) • Operation of a vehicle or vessel under the influence • Operation by a person under age 20 in which the BAC is above .02 • With no past MV Felonies or DUI

  15. Accelerated Rehabilitation (AR) • For 1st offenders on non-serious offenses • Cannot be used for: • A or B Felony, except larceny • Certain C Felonies • DUI • Any crime or MV violation resulting in the death of another

  16. Community Service Labor Program (CSLP) • For drug offenders who have minimal or no prior drug convictions for possession offenses

  17. Drug and Alcohol Dependency (Suspension of Prosecution) • For substance dependent defendants who are likely to benefit from treatment

  18. Drug Education Program • To provide education on less serious drug offenses

  19. Family Violence Education Program (FVEP) • To provide treatment for family violence involving physical harm or threat of physical harm where the defendant is charged with D felony • Cannot be use for class A, B, or C felonies

  20. School Violence Prevention Program (SVPP) • For secondary school students with the use or threat of physical violence on school property

  21. Youthful Offender Program (YO) • For people aged 16 and 17 to avoid a record of conviction • Closed Courtroom

  22. Persistent Offender Statutes

  23. Authorized Felony Sentences • Class A • Murder 25 to life (60) • All others 10 to 25 • Class B • 53a-55a 5 to 40 • All others 1 to 20 *except for 5 specified crimes where it is 50 to 20

  24. Authorized Felony Sentences • Class C • Most are 1 to 10 *except for section 53a-56a which is 3 to 10 • Class D • Most are 1 to 5 *except for specified offenses where it is 3 to 5 and 53a-216 where it is 5 • Unclassified • In accordance with statute defining the crime

  25. Persistent Dangerous Felony Offender 53a-40 • Sentence enhancement: • Not more than 40 years, or if two priors not more than life imprisonment

  26. Persistent Dangerous Sexual Offender 53a-40 • Sentence enhancement: • A sentence of imprisonment and special parole which together constitute a life sentence

  27. Persistent Serious Felony Offender 53a-40 • Sentence enhancement: • A sentence of imprisonment for the next more serious degree of felony

  28. Persistent Serious Sexual Offender 53a-40 • Sentence enhancement: • A sentence of imprisonment and special parole which together constitute a maximum sentence for the next more serious degree of felony

  29. Persistent Larceny Offender 53a-40 • Sentence enhancement: • A sentence for a class D felony (5 years)

  30. Persistent Felony Offender 53a-40 • Sentence enhancement: • A sentence of imprisonment for the next more serious degree of felony and at least 3 years to serve and 3 years of sentence may not be suspended or reduced by court

  31. Persistent Offender of Crimes Involving Bigotry or Bias 53a-40a • Sentence enhancement: • A sentence of imprisonment for the next more serious degree of misdemeanor (for a class A misdemeanor a sentence for a class D felony)

  32. Persistent Offender of Crimes Involving Stalking, Trespass, Threatening, Harassment, Violation of a Protective Order or a Restraining Order 53a-40d • Sentence enhancement: • A sentence of imprisonment for the next more serious degree of felony and at least 3 years to serve and 3 years of sentence may not be suspended or reduced by court

  33. Persistent Operating while Under the Influence- Felony Offender 53a-40f • Sentence enhancement: • A sentence of imprisonment for the next more serious degree of felony

  34. Mandatory Minimums

  35. Jessica’s Law “Jessica’s Law” establishes new sentences for sex offenses against children under 13 years of age;

  36. Jessica’s Law • A new class A felonyof aggravated sexual assault of a minor (victim under 13 years of age), with a mandatory minimum term of imprisonment of 25 years for a first offense, 50 years for any subsequent offense;

  37. Jessica’s Law • A MM of 5 years imprisonment for Risk of Injury to a Minor (section 53‑21) if the victim is under thirteen years of age;

  38. Jessica’s Law • The felony of enticing a minor (section 53a‑90) is a class B felony if the victim is under 13 years of age, with a MM term of imprisonment of 5 years for a first offense and 10 years for a subsequent offense.

  39. Jessica’s Law • Employing a minor in an obscene performance (section 53a‑196a) is a class A felony with a MM term of imprisonment of 10 years.

  40. Jessica’s Law • Importing child pornography (section 53a‑196c) and first degree possession of child pornography (section 53a‑196d), both class B felonies, now each carry a MM term of imprisonment of 5 years.

  41. Jessica’s Law • Possession of child pornography in the second degree, a class C felony, now has a MM term of imprisonment of 2 years.

  42. Jessica’s Law • Possession of child pornography in the third degree, a class D felony, now carries a MM term of imprisonment of one year.

  43. Burglary • 1st degree with a deadly weapon, explosive or dangerous instrument 53a-101 • 5 years • 2nd degree with a firearm 53a-102a • 1 year • 3rd degree with a firearm 53a-103a • 1 year

  44. Assault • 1st degree 53a-59 • 5 years if a deadly or dangerous instrument is used • 10 years if the victim is under 10 or a witness • 1st degree of the elderly, blind, disabled, pregnant or mentally retarded 53a-59a • 5 years

  45. Assault • 2nd degree with a firearm 53a-60a • 1 year • 2nd degree of the elderly, blind, disabled, pregnant or mentally retarded 53a-60b • 2 years • 2nd degree with a firearm of the elderly, blind, disabled, pregnant or mentally retarded 53a-60c • 3 years

  46. The Charging Function • Difficult and Complicated • Requires Legal Experience and Training • Impacts Victims, Convictions, Sentencing, and Release

  47. DOC- July 1, 2007 StatisticsIncarcerated Sentenced Population Top Ten Offenses

  48. DOC- July 1, 2007 StatisticsIncarcerated Sentenced Population Top Ten Offenses

  49. "[The prosecutor] is in a peculiar and very definite sense the servant of the law. . . It is as much his duty to refrain from improper methods. . . as to use every legitimate means to bring about a just [conviction]." Berger v. United States, 295 U.S. 78 (1935)

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