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Discretion in Making Legal Decisions

NCJ Number
Washington and Lee Law Review Volume: 43 Issue: 4 Dated: Fall 1986 Pages: 1161-1242
Date Published
82 pages

This examination of the way actors in the legal system make decisions focuses on the complexities of legal decision-making, relevant research that has been conducted in recent years, and the author's empirical work on an aspect of parole board decision-making.


"Legal decision-making," as understood in this paper, encompasses a variety of decisions made by individuals and groups involved in legal processes. After discussing the forms of legal decision, this paper considers the location of decision-making authority. The author then argues for the value of "naturalist" research that is conducted within a broadly interpretive or phenomenological framework that emphasizes matters of process and meaning, content, and context. From this perspective, the author critiques rationalist conceptions of decision, i.e., an emphasis on rationality, information, and decision goals. Empirical research in the rationalist tradition usually focuses on input to and output from decision-makers and the strength of any empirical association that can be demonstrated between the two. The author then presents part of an analysis of the exercise of discretion by parole board members in a number of American States. The analysis considers how concerns with such organizational preoccupations as the smooth administration of penal institutions, assistance in the management of the prison system, and relationships with colleagues in the institutions may come to dominate the exercise of discretion by a parole board when confronted with certain kinds of cases. Parole board decisions thus tend to look back to an assessment of a just punishment for what an offender has done, rather than focusing on the future in a prediction of what he/she is likely to do. The shape discretion takes reflects the fact that legal punishment is administered by organizations, and whenever organizations are involved, questions connected with management and efficiency assume consideration significance. Consequently, a substantial part of parole board discretion is exercised to an extent independent of rationalist concerns about punishment for crime in the community, the risk of offenders to the public, or the reintegration of the offender into the community. 164 notes

Date Published: January 1, 1986