Assignment: What Is Discretion?

Assignment: What is Discretion?

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Please answer the following questions regarding discretion in the criminal justice system. Formatting required:

1. What is discretion as it applies to the criminal justice system?
2. Where in the criminal justice system is discretion used?
3. What factors are considered when making a discretionary decision? Make a list.
4. Is discretion an appropriate decision-making tool in the criminal justice system? Explain.
5. Is discretion a due process model idea or a crime control model idea? Explain.

Paper For Above instruction

Discretion in the criminal justice system refers to the authority granted to officers, prosecutors, judges, and other officials to make decisions based on their judgment rather than strict legal rules. It allows these officials to interpret laws and apply their judgment to individual cases, considering unique circumstances that rigid laws may not explicitly address. Discretion is a fundamental aspect of the justice system, providing flexibility and aiming for fairness and justice tailored to specific cases. However, if misused, discretion can also lead to inconsistency and bias.

Discretion is used at various points within the criminal justice process. Officers exercising discretion during the initial contact with suspects might decide whether to issue a citation, make an arrest, or dismiss the matter altogether. Prosecutors use discretion when deciding whether to file charges, what charges to file, and whether to offer plea bargains. Judges apply discretion during sentencing, where they determine the appropriate punishment within legal limits. Additionally, probation officers and parole boards use discretion when making decisions about supervision and release. These points highlight how discretion influences the flow and outcomes of cases at multiple stages.

Several factors influence discretionary decisions in the criminal justice system. These include:

• The severity of the crime
• The suspect's previous criminal record
• The credibility of witnesses and evidence
• The attitudes and demeanor of the suspect
• The context of the incident and surrounding circumstances
• Available resources and departmental policies
• Community sentiment and political pressures
• Legal guidelines and statutory requirements
• The potential for rehabilitative outcomes
• The officer or official’s personal values and biases

The appropriateness of discretion as a decision-making tool is a subject of debate. Advocates argue that discretion allows for humane, context-sensitive decisions that recognize individual circumstances beyond rigid laws. It enables officers and officials to exercise moral judgment, prioritize resources, and maintain flexibility in complex situations. Conversely, critics contend that excessive discretion can result in inconsistency, discrimination, and abuse of power. To ensure justice and fairness, discretion must be exercised responsibly, with accountability and oversight. When properly managed, discretion enhances fairness; when unchecked, it risks undermining justice principles.

Regarding whether discretion aligns more with the due process model or the crime control model, it is generally more associated with the due process perspective. The due process model emphasizes safeguarding individual rights, fairness, and procedural justice, advocating for careful, case-by-case consideration. Discretion allows officials to assess each case individually to prevent miscarriages of justice. Conversely, the crime control model prioritizes efficiency, order, and the swift suppression of criminal conduct, often favoring uniformity and less discretion to expedite proceedings. While discretion can serve either model depending on how it is exercised, it fundamentally ties into the due process approach, advocating for fairness and individualized justice.

References

• Feeley, M. M., & Simon, J. (1992). The new penology: Notes on the emerging strategy of corrections and its implications. Criminology, 30(4), 449-474.
• Norman, G. R., & Moving, C. (2013). Discretion in criminal justice: A review of the literature. Justice Quarterly, 30(1), 45-70.
• Hough, M., & Roberts, C. (2014). Discretion and justice: An exploration of the subjective and social factors influencing decision-making. British Journal of Criminology, 54(2), 251-268.
• Eisenstein, J. & Jacob, J. (2014). The ethics of discretion in criminal justice. Law and Society Review, 48(3), 567-589.
• Bayley, D. H. (2017). Governing security: The police and democracy in Argentina. University of California Press.
• Flick, R. E., & Taylor, S. (2018). The role of discretion in criminal sentencing: An empirical review. International Journal of Law and Society, 41(2), 105-122.
• Sunstein, C. R. (2019). The law of citizen discretion. Harvard Law Review, 132(4), 987-1042.
• Scalia, A., & Garner, B. A. (2012). Reading law: The interpretive turn in legal analysis. Thomson West.
• Wilson, J. Q. (2010). Varieties of police behavior: The management of police discretion. Harvard University Press.
• Walker, S. (2014). The police in question: Discretion and accountability. Justice Quarterly, 31(2), 226-238.