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Discretion, Justice, and Democracy - A Public Policy Perspective

NCJ Number
C F Pinkele, W C Louthan
Date Published
144 pages
This volume addresses two modes of discretionary behavior in the criminal justice system -- structural discretion and individual discretion -- and probes the use and the meaning of discretionary behavior in public policy.
The complex question of how discretion squares with democratic theory is addressed, and the history of how discretion has been practiced and interpreted is provided. The issue of police discretionary behavior is examined; the authors recommend recognizing police as policymakers, on the basis of their discretion at the practical release stage is analyzed; results indicate that both structural and individual behavioral discretion are extensive and that bail-setting practices vary widely. Additionally, analysis of prosecutorial discretion reveals that its nature and scope are wide and varied. The extent of discretionary behavior is examined by comparing the sentencing patterns of two New Orleans criminal court judges; of two New Orleans criminal court judges; discretion in sentencing and in the parole process is also addressed. The administration of penal institutions, which has generally been the most autonomous and unrestricted area of discretionary behavior, is explored, and efforts to achieve judicial review are noted. Congress has done little to oversee the exercise of discretion; the authors emphasize the need to determine why discretionary decisionmaking is not important enough to warrant anything but piecemeal congressional attention. Finally, different aspects of discretionary behavior involved in civil rights litigation and administration are discussed Included are 160 references.