Bail Reform: Police Officer’s Charging Decision Process

by Fred Sisto | Nov 29, 2016 | Blog, Criminal Law, Law Reform and Amendments

“Subject to the limitations set forth in subsection 3.3.1,the directive may provide for the special designation of supervisory officers who are authorized by the County Prosecutor to approve issuance of a complaint-summons notwithstanding that this Directive establishes a presumption that a complaint-warrant will be sought, and/or who are authorized by the County Prosecutor to approve an application for a complaint-warrant notwithstanding that this Directive establishes a presumption that a complaint-summons will be issued, provided that the County Prosecutor determines that such delegation of prosecutorial authority is necessary to prevent the prosecutor’s office from being overburdened by charging consultations. In other words, a County Prosecutor may authorize specially selected designated supervisory officers to overcome presumptions under Section 4 of this Directive, provided, however, that if the County Prosecutor’s directive authorizes anyone other than an assistant prosecutor to overcome a presumption, the directive shall require that the prosecutor’s office be notified at the time of the charging decision that the decision had been made by a specially-designated supervisory officer to overcome a presumption. Such notification may be made by communicating telephonically with the on-call duty assistant prosecutor, or by sending an email to the on-call duty assistant prosecutor or other designated person or email address in the prosecutor ‘s office, as shall be specified in the County Prosecutor’s directive.”

This process seems to undermine the alleged rationale for the delegation of legal advice and charging decisions to non-lawyers, that being a lack of manpower in a county prosecutor’s office. If an on-call assistant prosecutor or other designated employee of the county prosecutor’s office still has to be notified about the supervising police officer’s charging decision, it stands to reason that very little time would be saved and the on-call assistant prosecutor should be the one giving the legal advice and making the charging decision in the first place.

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