Discretion

Discretion in the United States

Power possessed by officials to act on the basis of their own judgment. Discretion gives officials choices in making decisions, but the choices are not unbounded. Rather, discretion is generally circumscribed by some rules or principles and cannot be arbitrarily exercised. Discretion stems from many sources. One is that substantive law must be general. No law, including provisions of criminal codes, can anticipate every situation. As a result, it is necessary to determine what the law is trying to accomplish and apply that judgment to specific fact situations. Second, laws establish a wide variety of prohibitions. Often they are too numerous to fully enforce. Sometimes provisions of law conflict or compete with each other. In such circumstances, officials must exercise discretion to set enforcement policy which reflects priorities. Discretion may also be exercised when no guidelines exist. Finally, discretion exists because those who function in the criminal process are supposed to “do justice.” This allows personal values to play a substantial role in the operations of the criminal process.

See Also

Attrition (Criminal Process) Equity Jurisdiction (Criminal Process).

Analysis and Relevance

Discretion is at the core of the operation of the criminal justice system. Discretion provides the criminal process with some flexibility and, to some extent, fosters decision making on an individual case base. Processes permitting the exercise of discretion are theoretically used to produce just results. At the same time, they are vulnerable to abuse. Thus it is necessary to create some framework within which the exercise of discretion may be productive but safeguarded as well. Discretion is a central ingredient at all the critical decisional steps of the criminal process. Police, for example, exercise discretion in making arrest decisions. Not all persons who could be arrested are taken into custody. It depends on the circumstances, the legal criteria that apply, and department policy priorities. Thus an officer chasing a fleeing felon through a park will ignore violations of an ordinance that prohibits use of intoxicants there. In other situations, police will not arrest an individual, but rather allow the person to remain free in exchange for infeirJTJ3L’on- Prosecutors determine whether or not to bring formal charges, and if so, what charge (8 bring. A judicial officer then exercises discretion with respect to pretrial release and on the issue of whether the prosecutor can demonstrate probable cause. Determination of sentence is also a step where judges possess substantial discretion. There is no doubt that discretion permeates the criminal process. Many view discretion as essential to obtaining just results. On the other hand, discretion may run counter to the value of equal protection. Substantive and procedural rules have been fashioned to operate as a counterweight to discretion in an effort to retain the positive results of its use while simultaneously diminishing the chances of its misuse.

Notes and References

  1. Definition of Discretion from the American Law Dictionary, 1991, California

Discretion Definition

In Practice. The equitable decision of what is just and proper under the circumstances. The power of a judge, in certain matters, to decide in accordance with his own judgment of the equities of the cases, unhampered by inflexible rules of law. The latitude allowed to judges as to the action to be taken on certain facts. See 34 Barb. (N. Y.) 291. The discretion of a judge is said to be the law of tyrants. It is always unknown; it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion to which human nature is liable. Optima lex quae minimum relinquit arbitrio judicis; optimus judex qui minimum sibi. Bac. Aph.; 1 Cas. (Pa.) 80, note; 1 Powell, Mortg. 247a; 2 Belt, Supp. to Ves. 391; TouUier, Dr. Civ. liv. 3, note 338; 1 Lilly, Abr. 447. There is a species of discretion which is authorized by express law, and without which justice cannot be administered; for example, if an old offender, a man of much intelligence and cunning, whose talents render him dangerous to the community, induces a young man of weak intellect to commit a larceny in company with himself, they are both liable to be punished for the offense. The law, foreseeing such a case, has provided that the punishment should be proportioned so as to do justice, and it has left such apportionment to the discretion of the judge.’ It is evident that, without such discretion, justice could not be administered; for one of these parties assuredly deserves a much more severe punishment than the other. And many matters relating to the trial, such as the order of giving evidence, granting of new trials, etc., are properly left mainly or entirely to the discretion of the judge. As applied to executive officers, it means a power to decide on the propriety of certain actions, without any review by others. In Criminal Law. The ability to know and distinguish between good and evil, between what is lawful and whal) is unlawful.

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In Practice. The equitable decision of what is just and proper under the circumstances. The power of a judge, in certain matters, to decide in accordance with his own judgment of the equities of the cases, unhampered by inflexible rules of law. The latitude allowed to judges as to the action to be taken on certain facts. See 34 Barb. (N. Y.) 291. The discretion of a judge is said to be the law of tyrants. It is always unknown; it is different in different men; it is casual, and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion to which human nature is liable. Optima lex quae minimum relinquit arbitrio judicis; optimus judex qui minimum sibi. Bac. Aph.; 1 Cas. (Pa.) 80, note; 1 Powell, Mortg. 247a; 2 Belt, Supp. to Ves. 391; TouUier, Dr. Civ. liv. 3, note 338; 1 Lilly, Abr. 447. There is a species of discretion which is authorized by express law, and without which justice cannot be administered; for example, if an old offender, a man of much intelligence and cunning, whose talents render him dangerous to the community, induces a young man of weak intellect to commit a larceny in company with himself, they are both liable to be punished for the offense. The law, foreseeing such a case, has provided that the punishment should be proportioned so as to do justice, and it has left such apportionment to the discretion of the judge.’ It is evident that, without such discretion, justice could not be administered; for one of these parties assuredly deserves a much more severe punishment than the other. And many matters relating to the trial, such as the order of giving evidence, granting of new trials, etc., are properly left mainly or entirely to the discretion of the judge. As applied to executive officers, it means a power to decide on the propriety of certain actions, without any review by others. In Criminal Law. The ability to know and distinguish between good and evil, between what is lawful and whal) is unlawful.

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Notice

This definition of Discretion Is based on the The Cyclopedic Law Dictionary . This definition needs to be proofread..

Discretion (Federal Judgments)

This section introduces, discusses and describes the basics of discretion. Then, cross references and a brief overview about Federal Judgments is provided. Finally, the subject of Declaratory Judgment Actions in relation with discretion is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Discretion (Judges)

This section introduces, discusses and describes the basics of discretion. Then, cross references and a brief overview about Judges is provided. Finally, the subject of Judicial Officers in relation with discretion is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Discretion (Remedial Powers)

This section introduces, discusses and describes the basics of discretion. Then, cross references and a brief overview about Remedial Powers is provided. Finally, the subject of U.S. Federal Trade Commission Actions in relation with discretion is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Discretion (State Judgments)

This section introduces, discusses and describes the basics of discretion. Then, cross references and a brief overview about State Judgments is provided. Finally, the subject of Declaratory Judgment Actions in relation with discretion is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

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