I recently read a newspaper report of how an elderly scavenger was arrested and accused of stealing after somebody reported him for picking up cartons. After being questioned by a prosecutor, the man committed suicide by drinking hydrochloric acid in protest against the judicial injustice. Members of the Control Yuan reprimanded the young prosecutor for his disproportionate treatment of an inconsequential crime to boost his conviction rate. The prosecutor-general responded by saying that “prosecutors should have the courage to issue non-prosecution dispositions for minor offenses.”
As a teacher of criminal law, there is much about this story that I find troubling. How is it that a young prosecutor, new to the job, goes on an unthinking pursuit of conviction rates? This could give rise to a system that allows prosecutors to defer prosecution or not to prosecute minor cases as a way of getting rid of complex cases or cases where the evidence is insufficient, while minor open-and-shut cases that really should not go to court are used to bolster a conviction record.
The judicial reforms of the past few years have led to prosecutors, previously concerned with objectivity, fairness and justice, now being more interested in court victories achieved by besting the defendant in the courtroom. Although the reforms were introduced to address problems where prosecutors were thought to be lax in pursuing public prosecutions, it overlooked that, apart from public prosecution, the main part of a prosecutor’s job is to decide, after an objective evaluation — depending on the circumstances of each case and in accordance with the law — whether or not a case should be taken to court.
Furthermore, when prosecutors handle public prosecutions, it is not a necessity that they become too involved in the case at hand to execute their duties.
Another issue is whether prosecutors’ evaluations place excessive importance on their conviction record, and fail to take into account how well that prosecutor handled a particular investigation. This is why the prosecutor-general said that any prosecutor who chooses to forgo their “victory incentive” and decide not to prosecute require “courage” to do so. Is it really that difficult to design an evaluation system that also offers incentives for best practice of the law?
We also need to consider whether the examination and education system for judicial officials is able to cultivate good officers. Does the current examination, with its 5:2 weighting in favor of civil and commercial law over criminal law, adequately reflect the importance of criminal law, given that all prosecutors are involved with criminal cases, and more than half of judges preside over criminal cases? It is significant that the public’s main misgivings about the judiciary involve criminal cases.
Do law courses focus too much on certain aspects of the law, ignoring the humanistic element — the ability to differentiate between right and wrong, insights into human nature and real life experience — that is so important to criminal law? If so, they do so at the loss of all the teaching and research on criminology and the effectiveness of penal sanctions. Indeed, if the teaching of law is gradually shifting toward a more formalistic style of instruction bereft of the humanistic element needed to create an effective lawyer, how can we encourage idealistic young people to study law?
Finally, prosecutors have to understand that criminal investigations are about the rationale of punishment, and there are more ways to deal with minor offenders than by custodial sentences or fines.
If prosecutors are sending these minor offenders to court when the nature of their crime does not warrant it, does it make sense that, according to the system, the courts are only allowed to deliver guilty or not-guilty verdicts? Perhaps we should look to Germany, where the courts are obliged to drop a case if both the prosecution and the defendant give their consent.
Hsu Tze-tien is an associate professor in the College of Law at National Cheng Kung University.
Translated by Paul Cooper