How Does Social Media Affect the Criminal Justice System

Discretion in the Criminal Justice System

Shawn D. Bushway, Brian Forst

• Terminal REVIEWED: 26 May 2016
• Final MODIFIED: 02 March 2011
• DOI: x.1093/obo/9780195396607-0083

Introduction

Discretion is the latitude granted officials to act under a formal set of rules and in a public capacity. The rules themselves are normally the outcome of discretion past other actors in the criminal justice system, such as the legislature, which has created the criminal code for the jurisdiction. However, fifty-fifty the most detailed rules let for discretion, and it is possible that this discretion will permit actors subject to the rules to countermand or contradict the rules. The best example of this blazon of contradiction comes in the example of mandatory sentences, where legislative intent is frequently averted through the apply of prosecutorial discretion. Even if executed "within" the rules, however, discretion can lead directly to disparity, where "like" cases are treated differently. In the instance of sentencing, disparity involves the awarding of unlike punishments to cases that appear to be identical on the merits, or alternatively, the application of same penalisation to cases that appear dissimilar. It is common to focus on disparity along a particular dimension, such as race. Disparity in this framework takes on a different meaning, and refers instead to the fact that individuals with a given characteristic are over- (or nether-) represented in the criminal justice organization relative to their representation either in the population or in the commission of a type of offense. Racial disparity is further decomposed into two types: warranted or unwarranted. Warranted disparity is the variation in outcomes due to legally relevant factors such as criminal history, crime type, and offense severity, which are correlated with race. Unwarranted disparity is the variation in outcomes that tin exist reasonably identified equally being the sole effect of race or other extralegal factors (e.g., gender) later on all legally mandated sentencing factors are taken into business relationship. This framework crystallizes the importance of rules in the empirical analysis of discretion. Any assay that does not fully account for the legally mandated procedure (and factors) runs the hazard of mistakenly labeling disparity as unwarranted when, in fact, it may be "warranted" according to the rules of the organisation. Only information technology also raises the specter of as well much deference to the rules, especially in cases where the rules themselves take the potential to create disparity, as in the case of federal rules that phone call for tougher sanctions for dealing in "crack" cocaine rather than powder cocaine. For both of these reasons, any word of discretion must commencement from a review of the goals of the system and an agreement of how these goals are reflected in the formal rules of a organisation with many moving parts.

Full general Overviews

In their business relationship of the American Bar Foundation survey of 1953–1969 (Ohlin and Remington 1993), Editors Lloyd Ohlin and Frank Remington highlight the central importance of discretion in the functioning of the criminal justice organization (CJS). They depict the CJS as a complicated set of interdependent actors who act on cases involving individuals accused of crimes. Samuel Walker 1992 adds that the term arrangement is mayhap misleading, considering the police force, courts, and corrections are largely independent of one some other, although the deportment of each set of actors conspicuously have an touch on the others. The President's Commission on Police Enforcement and Assistants of Justice and Katzenbach 1967 elaborated on the American Bar Foundation survey past describing the complex web of relationships among these actors. For instance, while judges tin exercise discretion merely in cases involving arrested offenders that prosecutors charge with crimes, sentencing policies and practices influence the actions of law and prosecutors. Considering of the salience of sentencing policy to the exercise of discretion generally, sentencing policy warrants treatment as a driver of discretion. The National Research Council's 1983, a landmark review of sentencing, offers a starting time systematic assessment of sentencing goals, policies, and the disparity and discrimination that tin can follow a lack of consensus on the fundamental purposes of sentencing. Two other classics on discretion are besides included here: First, Dworkin 1977 treatment of the subject field, which distinguishes between the routine exercise of discretion and the more controversial utilise of discretion to alter policies viewed equally misguided; and second, Gottfredson and Gottfredson 1988, a book on discretion, which offers a thoughtful account of the essential aspects of discretion and how information technology can be used effectively to ameliorate the functioning of the criminal justice organization.

• Dworkin, Ronald. 1977. Taking rights seriously. Cambridge, MA: Harvard Univ. Press.

  This book is a legal-theory classic on discretion. It distinguishes discretion from ordinary personal determination making, not accountable to a set of standards or a higher authorization (p. 31). Dworkin distinguishes further betwixt "weak" (ordinary judgment) and "strong" discretion (pp. 31–32), which draws on principles and is invoked under a duty that transcends normally applicable technical rules, relating to an "ultimate social rule or set up of social rules" (p. 69).

• Gottfredson, Michael R., and Don M. Gottfredson. 1988. Conclusion making in criminal justice: Toward the rational exercise of discretion. New York: Plenum.

  An fantabulous book-length treatment of the decisions that create the flowchart in President's Committee on Law Enforcement and Administration of Justice and Katzenbach 1967, including the determination by the victim to report the crime, an often overlooked function of the process. This text is probably best for a graduate-level class.

• National Enquiry Council 1983. "Sentencing practices and the sentencing reform motion." In Inquiry on sentencing: The search for reform. Vol. 1. Edited by Alfred Blumstein, 39–68. Washington, DC: National Academies.

  This is the introduction to the landmark National Inquiry Council volume on sentencing. The first chapter is a very readable discussion of the actors in the organization, including the legislatures. The chapter is particularly noteworthy for its word of the goals of the organisation, including justice, fairness, and crime control/prevention, and the changing nature of these goals. Recommended for all readers.

• Ohlin, Lloyd E., and Frank J. Remington. 1993. Discretion in criminal justice: The tension between individualization and uniformity. SUNY Series in New Directions in Criminal Justice Studies. Albany: State Univ. of New York Press.

  Based on the landmark 1957 American Bar Foundation survey, this anthology gives a systemic view of the criminal justice system, in terms of the decisions made by police, prosecutors, judges, and corrections officials: practitioners prefer flexibility to rules; discretion is exercised mostly at the lowest levels of the organization (especially in policing and prosecution) and with limited transparency; and attempts to control decisions at one stage affect decisions made by agents at other stages of the process, in a hydraulic manner.

• President's Commission on Constabulary Enforcement and Assistants of Justice and Nicholas de B. Katzenbach. 1967. The challenge of crime in a free gild. Washington, DC: Regime Printing Office.

  This is an of import historical document notable for its inclusion of the at present-iconic "criminal justice flowchart" (pp. eight–9), which highlights the complexity of the system and the process of selection by which ever fewer defendants continue farther into the system. The document is as well notable for its consideration of law, courts, and corrections (capacity four, 5, and half-dozen) in the context of crime command. An updated version of the nautical chart tin exist establish on the Bureau of Justice Statistics website.

• Walker, Samuel. 1992. Origins of the contemporary criminal justice paradigm: The American Bar Foundation survey, 1953–1969. Justice Quarterly 9.ane: 47–76.

  DOI: 10.1080/07418829200091251

  Although somewhat unconventional in its historical approach, the article does a skilful job of describing the evolution of the concept of the "criminal justice arrangement" and the role of discretion within that system. The paper is very readable and should generate much discussion nearly the importance of paradigms in a graduate or undergraduate form.

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