Discretion in the Criminal Justice (From Political Science of Criminal Justice, P 150-171, 1983, Stuart Nagel et al, ed. - See NCJ-87705)

• NCJ Number: 87713
• Author(s): S Nagel
• Date Published: 1983
• Length: 22 pages
• Sale Source: Charles C. Thomas
• Language: English
• Country: United States of America

Annotation

Abusive disparity in judicial decisionmaking based on the demographic characteristics of defendants and judges can be reduced by channeling, reducing, or controlling judicial discretion.

Abstract

An analysis of a given set of cases in which all the defendants have been charged with the same crime is likely to reveal substantial differences across individual defendants with regard to (1) safeguards for the innocent such as preliminary hearings and trial by jury, (2) pretrial release, and (3) postconviction sentencing. Also, an analysis of a given set of judges all hearing the same types of criminal cases on the same State supreme courts is likely to show substantial differences across individual judges and across demographic types of judges with regard to (1) political party affiliation, (2) prior occupation, (3) ethnic group membership, and (4) liberalism attitudes. Reducing abuses of discretion by channeling, reducing, or controlling discretion can be justified by making the system (1) more effective by reducing the crime-causing bitterness generated by perceived disparities; (2) more efficient by reducing the numerous administrative complaints, lawsuits, and case issues generated by perceived disparities; (3) more equitable by reducing the unfairness whereby the burden of the disparities is disproportionately incurred by certain more vulnerable demographic groups. Channeling discretion involves developing internalized incentives for encouraging the desired exercise of discretion, and controlling discretion uses external devices for monitoring and possibly reversing abuses of discretion. Reducing discretion means that judges are limited by statute in their decisionmaking options. Perhaps the most effective way of dealing with disparities is to control and reduce abuses of discretion rather than by reducing discretion. This can be done by making appeals easier, requiring collegial decisions, and mandating explicit justifications for deviant decisions. Tabular and graphic data are provided.