Pressing for Sentence? An Examination of the New Zealand Crown Prosecutor’s Role in Sentencing

Abstract

Prosecutors are among the most powerful actors in any criminal justice system. Their exercise of discretion, however, has not been subjected to the same level of public and empirical scrutiny as other parts of the criminal justice system. To deepen understanding, I empirically explore for the first time the form, function and limits of the New Zealand Crown Prosecutor’s role at the sentencing stage of the criminal justice process. Semi-structured interviews of a non-representative sample of ten Crown Prosecutors are analysed using Hawkins’ framework of “surround”, “field” and “frame”. Findings suggest that whilst New Zealand’s regime shares history, principles, and structural features with English and Australian regimes, it goes further to permit Crown Prosecutors a more assertive role in sentencing. In the ‘surround’, populist and managerial pressures create frustration, strain, and concern. Changes to funding models suggest the potential for unjust sentencing outcomes has increased. The “surround” also intrudes upon and transforms decision-making “frames”. The opinions and presence of stakeholders influences decisions and practices at office and individual levels. Justice may be reactive, forward-looking, or negotiated depending on the particular mix of individuals involved – something accentuated by the regime’s privatised and decentralised form. Findings also suggest that Crown Prosecutors “frame” their role in occupational terms. The lack of interest of universities, professional bodies, and law and policy-makers in offering or requiring prosecutorial training before entry to the role is influential. This renders decision-making more susceptible to pressures in the “surround” and “field”, and increases variation in decision-making “frames”.