To Charge or Not to Charge, That Is Discretion: The Problem of Prosecutorial Discretion in Chile, and Japan\u27s Solution

Chile’s recent criminal procedure reform is an ambitious program to bring greater transparency, fairness, and effectiveness to the country’s legal system. However, the success of the reform is not assured. To a great extent, the reform’s success will depend on the new national Office of the Public Prosecutor’s ability to enforce laws and direct law enforcement within the confines of the new system. Prosecutors must balance the interests of the Chilean public’s demands for order and convictions with the reform’s underlying principles of impartiality and enhanced rights for defendants. If prosecutors resort to the excesses used by investigating judges under the old system, the reform’s goal of enhanced defendant rights will be thwarted. On the other hand, if prosecutors are unable to secure convictions and adequately direct law enforcement, Chileans will lose faith in the viability of the new system. Chile’s criminal procedure reform can succeed, but it will depend a great deal upon skillful use of prosecutorial discretion in charging cases. In crafting a viable solution to the challenge of managing prosecutorial discretion, Chile should look to the model of Japan’s prosecution review commissions