NCJ Number
27755
Journal
Oklahoma Law Review Volume: 28 Issue: 2 Dated: (SPRING 1975) Pages: 311-332
Date Published
1975
Length
22 pages
Annotation
THE EXERCISE OF DISCRETIONARY POWER BY THE POLICE AND PROSECUTORS IS EXAMINED. IT IS SUGGESTED THAT OPENLY DECLARED AND EVENLY APPLIED DISCRETIONARY POLICIES ARE PREFERABLE TO 'AD HOC' DECISIONS MADE BY INDIVIDUALS.
Abstract
THE GROWTH OF DISCRETIONARY PRACTICES IN THE UNITED STATES IS DISCUSSED, AND PROBLEMS ASSOCIATED WITH THESE PRACTICES ARE EXAMINED. THE FACT THAT LAWS ARE NOT BEING FULLY ENFORCED AND THAT THE CRIMINAL PROCESS MAY DEPEND TO A LARGE EXTENT ON THE IDIOSYNCRACIES OF INDIVIDUALS AND AGENCIES IS SEEN AS A DISTURBING RESULT OF WIDESPREAD EXERCISE OF DISCRETIONARY POWERS. THE ISSUES OF POLICE DISCRETION AND PROSECUTORIAL DISCRETION ARE EXAMINED, WITH AN EMPHASIS ON THE PROBLEM OF PLEA BARGAINING. JUDICIAL REVIEW OF PROSECUTORIAL AND POLICE DISCRETION HAS NOT BEEN EFFECTIVE IN SOLVING THE PROBLEM OF SELECTIVE ENFORCEMENT OF THE LAW. THE ETHICAL AND MORAL ISSUES RELATED TO DISCRETION AS A JURISPRUDENTIAL QUESTION ARE EXPLORED, AND THE PROBLEMS OF EQUALITY AND EQUITY BEFORE THE LAW ARE DISCUSSED. IT IS CONCLUDED THAT INADEQUATE RESOURCES AND LAWS THAT DO NOT REFLECT CONTEMPORARY MORALITY HAVE FORCED LAW ENFORCEMENT OFFICIALS AND AGENCIES TO USURP AUTHORITY AND TO DECIDE WHICH OFFENSES TO ENFORCE AND AGAINST WHOM. THE AUTHOR FEELS THAT, AS LONG AS DISCRETION ON NONEQUITY GROUNDS EXISTS, IT WOULD BE BETTER TO ADOPT NONENFORCEMENT POLICIES AT THE POLICY LEVEL IN OPEN PROCEEDINGS RATHER THAN TO ALLOW INDIVIDUALS AT THE 'WORKING LEVEL' TO APPLY 'AD HOC' ENFORCEMENT POLICIES.