NCJ Number
60771
Date Published
1979
Length
25 pages
Annotation
THE VALUES AND DANGERS OF DISCRETION IN DECISIONMAKING IN THE CRIMINAL JUSTICE SYSTEM ARE DISCUSSED, AND A STRATEGY FOR REDUCING POTENTIAL INJUSTICES IN THE USE OF DISCRETION IS DESCRIBED.
Abstract
THE GENERAL CHARACTER AND IMPLICATIONS OF DISCRETIONARY CRIMINAL JUSTICE DECISIONMAKING ARE THE SAME WHETHER IT BE IN THE AREAS OF POLICE BEHAVIOR IN THE COMMUNITY, PROSECUTORIAL CHARGE DISCRETION AND RELATED NEGOTIATED PLEA BARGAINING, THE TREATMENT OF INMATES IN PRISONS AND ON PAROLE, SENTENCING, OR THE CARE AND CUSTODY OF JUVENILES, THE MENTALLY DISABLED, AND THE SUBSTANCE-ADDICTED. DISCRETIONARY DECISIONS ARE TROUBLESOME BECAUSE THEY CAN BE ARBITRARY AND POTENTIALLY CORRUPT; AND IN AN EXTREME FORM ARE EQUATED WITH NORMLESSNESS, PROCEDURAL INFORMALITY, AND UNREVIEWABILITY. IN ACTUALITY, HOWEVER, EACH DISCRETIONARY DECISION IN THE CRIMINAL JUSTICE SYSTEM IS SUBJECT TO SOME STANDARDS, PROCEDURAL GUIDELINES, OR REVIEW. IN RECENT USAGE, DISCRETION SOMETIMES SUGGESTS BEHAVIOR THAT IS ANTITHETICAL TO LAW, OR IN SUCH A VIEW, THAT DUE PROCESS OF LAW HAS BEEN USURPED. ON THE POSITIVE SIDE, DISCRETION CAN PROVIDE RELIEF FROM A RIGID, INSENSITIVE APPLICATION OF THE LAW THAT IGNORES THE SPECIAL CIRCUMSTANCES AND NEEDS OF THE INDIVIDUAL OFFENDER. INSTEAD OF VIEWING DISCRETION AS THE ABSENSE OF LEGALITY OR A DISPENSING RELIEF FROM THE LAW, IT CAN BE SEEN AS THE CONNECTIVE TISSUE THAT ENABLES A LEGAL SYSTEM TO WORK, A MEANS FOR TRANSVERSING THE GAP BETWEEN THE ABSTRACT WORDS OF A RULE AND THE APPLICATION OF THAT RULE TO A SPECIFIC SITUATION. IT IS IMPOSSIBLE FOR ANY STATUTE TO COVER EVERY CONTINGENCY RELATED TO ITS APPLICATION. THE MAKING OF WISE, JUDICIOUS DECISIONS INEVITABLY DEALS WITH RISKS AND UNCERTAINTIES. DISCRETIONARY DECISIONMAKING SHOULD BE VIEWED AS ANOTHER FORM OF LEGALITY, STANDING ALONGSIDE OR ACTING AS AN EXTENSION OF THE WRITTEN LAW. FROM THIS PERSPECTIVE, THE AGENDA FOR NEEDED RESEARCH INCLUDES STUDY OF THOSE QUALITITES THAT ENABLE AN INDIVIDUAL TO MAKE SUPERIOR DECISIONS. REFERENCES ARE PROVIDED.