imilarly. at times changing circumstances must cause temporary deviations in the "tone" or office policies that the Prosecutor sels. For example. our office has always Lreated first and even second offense breaking or enterings into vehi-
c1cs as a probation offcnsc. By and largc this policy works wcll for our jurisdiction. Unfortunately. we have gone through sporadic episodes where offenders openly advel1ise this policy among themselves and the number of offenses
gcts totally out-of-hand. In thosc cascs. we temporarily adjust our policy and sentence several of the next offenders to incarceration. I regret that this sometimes has to happen. but it has a tremendous effect on the number of crimes com-
millcd. Thc word quickly gets out and we immediately have break-ins drop dras-
tically. Although it would seem a simplistic situation to continuc this harsh policy at all times and hopefully have thcsc offenses completely disappear. we have found that this is impossible. We are also very cognizant of the fact that if we send every breaking or entering case to the Penitentiary. not only do we run a very
rcal risk of making what could well be salvageable first offenders non-salvageable career criminals. but we also congest the Penitentiary and the bottom line is our rapists. robbers and other serious offenders tend to get out quicker to make room
for these types of offenses. Still. the
illustration is sound in that temporary changes of policies can work wonders for a local prosecutor if they are judiciously used. In these cases. we attempt to separate the "first offenders" from the "first time caught"路 multiple offenders. The charging decision is made easier
(or perhaps more difficult?) by implied or absolute guidelines set forth by the Legislature. A Prosecutor is assisted in making a routine decision in a theft case by looking at the value of the loss. Under
$500.00 (yes, Virginia, the amount has changed) is a misdemeanor. over $500.00 is a felony. Still. there are some exceptions to any rule. For example. the Legislature recognizes that rather than setting a hard and fast rule in concrete that it may be that a continuing scheme exists and the Prosecutor can aggragate
certain types of theft cases that would normally be misdemeanors standing alone
and file a felony charge. By and large. however, the monetary guidelines set forth by the Legislature are of great assistance in determining an initial charge in routine property crimes.
No one should belillie the idea of an office "policy" in charging decisions. In many instances it helps to smooth out the rough spots in our judicial system and
prevents bias. prejudice. and other deletrious factors from being interjected. By setting forth a policy, whether written or unwritten. the Prosecutor is setting
forth guidelines that will ensure that consistency is achieved in the charging process. It is this consistency in charging
across the entire spectrum of Dcfcndants that can greatly add to the credibility of a Prosecutor's Office. not to mention withstanding Federal and ethical scrtltiny over improper motives in charging. Even in routine cases that appear to
clearly fall within a set policy. the policies must be reviewed periodically. The decision seems basic. determining whether or not the case should fall within the policy. but the implications are deep.
Every case filed under an existing policy is an affinnance that the policy is still appropriate and correct. As mentioned above with the breaking or entering
cases. periodically all policies
mUSl
be
reviewed and sometimes adjusted tem-
porarily or permanently. Exceptions can always be made for the "individual" cases. with the recognition that these exceptions must be clearly
delineated. Policy decisions should apply in those instances where at least 80 to 90% of the cases fall within the broad policy. Although exceptions will be made in any policy. exceptions by their very definition should be kept as small as possible. Once the exceptions get to the point that they are approaching 30 to 40'k of the cases. the policy should no longer be considered a policy. Large amounts of exceptions will easily lend themselves to
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I 21
The Arkansas Lawyer
Winler 1996