Discretion is the basic right to act in relation to one’s own judgment. This is an essential aspect of criminal justice. Within the criminal justice system, those who have any form of authority, including police officers, court officials, and probation officers, are given a level of discretion in order to utilize their ability to process those who have broken the law. Beginning with the police, who are given the discretion to make arrests, an individual is then given to the discretion of the court system, and the scrutiny of judge and public attorney. After this, a person might experience a variety of institutional actors which have their own form of discretion, including jails, prisons, and probationary and parole officers. In assessing the relationship between these institutions and the discretion given them within the bounds of the law, their capacity to contribute to the purposes of the criminal justice system can be enforced. However, these values should be assessed in order to determine the level of virtue that this discretion is exercised with by the various agencies associated with the criminal justice system and the actions that they take.
Examples of Discretionary Decision Making:
One of the most evident examples of discretionary decision making is a law enforcement officer’s use of their own judgment in the application of their authority in relation to the personal rights of individuals. When faced with a specific situation, a law enforcement officer is inclined to act in ways that most effectively alleviate the issues with as little problems as possible. In utilizing their discretion, they are expected to act in accordance with specific standards and regulatory frameworks which should be used in order to better adapt to their circumstances. The decisions that officers make when it is unclear how specific rules should be applied demonstrates the way in which their discretion is an important part of the job. Discretionary decision making in this way is acted out in accordance with specific requirements. Police act on “inseparably interrelated parts of a repertoire of responses which they use to resolve situations involving youth whom they believe to have committed offences” (Carrington & Schulenberg, 2003). Most of the situations that they might encounter, however, generally fall within the bounds of specific regulatory frameworks. In these situations the level of discretion that they act upon is not as important, but they should still be careful to act in accordance with their obligations. These obligations are generally intended to be towards not only the general public, but various state and local requirements as well as their institutional policies.
After an officer has made an arrest, the individual in question is then processed through the criminal justice system, which requires the application of specific legal considerations as well as the underlying context of their crime. Both the prosecutors as well as the courts at this point are given discretionary decision making rights over the individual. While the officers are obligated to present the charges against the person in question and give any pertinent information related to the situation, the court system is charged with reviewing the information and presiding over the judgement of their actions. It is evident that “whether a person enters the system and how the system treats the offender is determined to a large degree by the exercise of informal discretionary powers by public officials at all levels” (Banks, 1977, p. 20). The responsibilities of the criminal justice system include ensuring that the person in question is able to present their case and challenge the decision of the arresting officer. Discretion of the courts therefore relies on finding the facts of the case and ruling on whether or not the actions and responsibilities of the individual were within their rights or in breach of the law. The judge’s discretion in such a case is important to consider. They will likely use their discretion in making specific rulings during the processing of the individual and recommending or denying specific requirements be applied to the specifics of the case. Decisions of guilt or innocence are primarily determined through the discretionary decision making that is employed by the courts.
Advantages and Disadvantages:
The major advantages of discretion within the criminal justice system include flexibility and efficiency. While there may be certain disadvantages of giving police discretion, it is evident that the nature of their job requires the authority for discretionary decision making. One of the primary elements within their position is independent decision making. In order to allow them to make meaningful decisions, it is necessary for them to be given a level of discretion in their positions. This is important in their ability to effectively manage the variety of situations that they might be presented with, which can often be dangerous as well. Usually, when making their decisions, police officers lack the time or resources to effectively communicate with their superiors. Furthermore, these situations may not always directly reflect the specific frameworks that have been given the officers for managing the conditions upon which their actions are taken. This presents the need to provide them with the discretion to make decisions. In relation to the number of people that police deal with, it is evident that a level of discretion is needed in order to ensure that the courts and corrections aspects of the system are not overloaded by too many people being processed. Evidence suggests that “the prosecution of individuals arrested due to zero-tolerance policing both increases racial disparities in the system and undermines individualized adjudication of culpability” (Howell, 2014, p. 286). The ability to flexibly manage situations is essential in order to limit the volume of people that would otherwise be subject to being processed.
The disadvantages of discretion include the need for both transparency and responsibility in relation to the actions that are taken by the criminal justice system. In this regard, the level of accountability that officers have are directly related to the level of discretion that they have to make decisions that fall outside the general guidelines of their institutional frameworks. This can result in mistakes being made as well as the uncontrolled use of discretion, which can result in public harm. The lack of consistency that results from the discretion for decision making is a major drawback of such needs, due to the lack of control that results. In situations in which discretion is given to an individual it becomes necessary to take them at their word when making decisions about how to deal with others. “Reconciling, on the one hand, the duty to enforce the law fairly and impartially, and on the other hand, the need to temper strict law enforcement for sound policy and operational reasons” (Bronitt & Stenning, 2011, p. 319). This results in certain liabilities related to the principles that have been relayed through the authority of those with discretion. This is especially important when considering the discretion that is given to police officers in the use of force. The abuse of discretion by the police can result in violations of an individual’s personal rights and compromise the integrity of the criminal justice system and its ability to process people in an equal and just manner. Discretion can be the source of police aggression and overwhelming authority of those who are supposed to protect people. Certain protections accorded to people under the law demonstrate the need for police to control their discretion so that these protections can be provided.
Discretion is a necessary element of the criminal justice system. It is impossible to eliminate it entirely. It is necessary to distribute discretion among a variety of agents so that the system will work more efficiently and effectively. When this discretion is abused, a variety of problems can occur, such as the violation of basic rights and an inability for the courts and corrections systems to maintain integrity. This is important due to the need to adapt to specific circumstances, however, this flexibility also comes at a cost. The underlying circumstances of a case are challenged by the overwhelming authority accorded to those that are processing the individual in question. These aspects of discretion provide important insight into the need to carefully scrutinize the results of giving discretion to those that have such control over individual freedom. One of the most effective means to overcome the abuse of discretion is the establishment of basic policies and procedures that must be followed in order for certain criteria to be met. In considering the value of these aspects a more careful consideration of the importance of increasing or decreasing discretion can be assessed. Assessing the level of discretion that certain individuals or institutions have in making decisions it is also necessary to balance these levels with the need for accountability and the value of enhancing the authority of their actions.
References
Banks, T.L. (1977). Discretionary Decision Making in the Criminal Justice System and the Black
Offender: Some Alternatives. National Black Law Journal. Vol. 5. No. 1.
Bronitt, S. & Stenning, P. (2011). Understanding Discretion in Modern Policing. Criminal Law Journal. 33.
Carrington, P.J. & Schulenberg, J.L. (2003). Police Discretion with Young Offenders. Department of Justice, Canada.
Howell, K.B. (2014). Prosecutorial Discretion and the Duty to Seek Justice in an Overburdened
Criminal Justice System. The Georgetown Journal of Legal Ethics. Vol. 27. 285-335.
