CAROLINA ACADEMIC PRESS
DISCRETIONARY CRIMINAL JUSTICE
IN A COMPARATIVE CONTEXT
Edited by
Michele Caianiello, University of Bologna, Italy
Jacqueline S. Hodgson, University of Warwick School of Law, United Kingdom
Forthcoming June 2015 | ISBN 978-1-61163-773-1
ABOUT THE BOOK
This volume brings together a broad range of scholars working within a variety of procedural traditions in Europe, North America
and China. The first section contains three papers that address the use of discretion during the investigation and prosecution stage of
criminal proceedings; the second section deals with negotiated justice and various types of plea agreements in Spain, China and Italy.
In the third section, different approaches to the exclusion of evidence are discussed, relating to Switzerland, Germany and a potential
EU approach. The fourth section discusses discretion in relation to the death penalty in the US. At the heart of these issues is the problem of reconciling prosecutorial and judicial discretion with the principle of legality. The need to avoid arbitrary decisions is key,
but the authors come to differing conclusions as to the impact and value of judicial discretion at different stages of the process and in
different jurisdictions.
Discretion is the theme of the collection, and the writers believe it can be characterized in positive terms, as it ensures that justice is
tailored to the individual and to the facts of the case rather than being applied mechanically. However, without a clear legal framework, it risks allowing arbitrary decisions based on bias or other legally irrelevant factors. All of the papers collected in the book teach
us something about the way that discretion plays out in different systems and how it is understood and adapted within existing legal
norms and cultures.
FOR MORE INFORMATION / HOW TO ORDER
For updates or to order this book once it is available, please visit http://www.cap-press.com/books/isbn/9781611637731.
TABLE OF CONTENTS
Part II — Negotiated Justice, continued
Introduction by Jacqueline S. Hodgson
Part I — Investigation and Prosecution
1: Discretionary Justice at the Initiation of a Criminal Investigation
by Lorenzo M. Bujosa Vadell
6: Critical Aspects on the Italian Features Concerning
“Negotiated Justice” by Daniele Vicoli
Part III — Procedural Errors
2: Prosecutorial Discretion in Three Systems: Balancing
Conflicting Goals and Providing Mechanisms for Control by
Sara Sun Beale
7: Water always finds its way — Discretion and the Concept of
Exclusionary Rules in the Swiss Criminal Procedure Code by
Sabine Gless and Jeannine Martin
3: Investigative and prosecutorial discretion in criminal matters:
The contribution of the Italian experience by Stefano Ruggeri
8: Throw it all out? Judicial discretion in dealing with procedural
faults by Thomas Weigend
Part II — Negotiated Justice
4: The Principle of Legality, Discretionary Justice and Plea
Agreements: the Practice in Spain by Lorena Bachmeier
5: Beyond Legitimate Grounds: External influences and the
discretionary power not to prosecute in the People’s Republic of
China by Yu Mou
700 Kent Street, Durham NC 27701
9: Procedural Sanctions in the EU Framework: Toward a Harmless
Error Doctrine and Practice? by Michele Caianiello
Part IV — Sentencing
10: Death and Discretion: The American Experiment in Capital
Jurisprudence by Erik Luna
Index
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