NCJ Number
52544
Date Published
1978
Length
14 pages
Annotation
REASONS WHY LEGISLATIVE ATTEMPTS TO REDUCE DISCRETION BY DETAILING THE PROVISIONS OF CRIMINAL LAW ACTUALLY INCREASE DISCRETION IN THE ENFORCEMENT OF THAT LAW ARE EXAMINED AND IMPLICATIONS ARE DISCUSSED.
Abstract
DISCRETION IS DEFINED AS THE POWER OF OFFICIALS TO CHOOSE AMONG COURSES OF ACTION OR INACTION CONSISTENT WITH THE TERMS OF A LAW. IT IS TAKEN FOR GRANTED, ESPECIALLY AMONG LAWYERS, THAT SPELLING OUT THE TERMS OF A LAW WILL REDUCE AMBIGUITY IN ITS APPLICATION. SEMANTICISTS, HOWEVER, HAVE POINTED OUT THAT AS THE LANGUAGE OF A LAW GROWS, THE NUMBER OF POSSIBILITIES FOR DIFFERENCE IN INTERPRETATION ALSO GROWS. ATTEMPTS TO CLARIFY A STOLEN VEHICLE LAW ARE CITED AS AN EXAMPLE. THE PSYCHOLOGICAL EFFECTS OF NEW LEGAL PROVISIONS ARE ALSO EXAMINED. IT IS CONCLUDED THAT CRIMINAL JUSTICE PERSONNEL TEND TO RELY ON PAST EXPERIENCE AND, WHEN FACED WITH NEW LANGUAGE, TEND EITHER TO DO NOTHING OR TO ENFORCE THE NEW LAW TO THE LETTER EVEN WHEN SUCH ENFORCEMENT BORDERS ON THE CAPRICIOUS AND, OCCASIONALLY, ON THE RIDICULOUS. A SURVEY OF THE TRIAL PROCESSES INVOLVING OVER 700 DEFENDANTS IN A MAJOR METROPOLITAN AREA IS CITED; MORE THAN 60 PERCENT REPORTED THAT THE DISPOSITION HAD BEEN MUCH HARSHER THAN THEIR CASES HAD MERITED. THIS IS ATTRIBUTED TO OVERLY RIGID LAW ENFORCEMENT. IT IS SUGGESTED THAT SUCH ENFORCEMENT ENGENDERS LACK OF RESPECT FOR LAWS. GREATER DISCRETION, BASED ON GREATER KNOWLEDGE AND UNDERSTANDING OF A PARTICULAR CASE, IS BELIEVED A BETTER DETERRENT IN THE LONG RUN. REFERENCES ARE APPENDED. (GLR)