discretion | Definition

Doc's CJ Glossary by Adam J. McKee


Course: Introduction

Discretion refers to the freedom of a criminal justice agent to decide what should be done in a particular situation based on professional judgment.

Discretion is a fundamental aspect of the criminal justice system, granting authority to law enforcement officers, prosecutors, judges, and other criminal justice professionals to make decisions based on their professional judgment in specific situations. This freedom to exercise judgment allows criminal justice agents to tailor their responses to the unique circumstances of each case, taking into account factors such as the severity of the offense, the offender’s criminal history, and the needs and preferences of victims.

Discretionary decisions are necessary because no two cases are precisely the same, and rigid adherence to strict rules or procedures may not always produce the best outcomes. Discretionary judgments provide an opportunity for criminal justice professionals to consider individual factors that may influence the outcome of a case. For instance, a prosecutor may choose to drop charges against a first-time offender who committed a minor offense and shows genuine remorse rather than pursue the case to trial, which may result in a criminal record and other long-term consequences for the offender. Similarly, a judge may choose to sentence an offender to community service or probation instead of incarceration if they believe that alternative sanctions will be more effective in rehabilitating the offender and preventing future criminal behavior.

However, discretionary decisions are not without their challenges and potential drawbacks. Critics argue that discretionary judgments may lead to inconsistency and unequal treatment in the criminal justice system. For example, research has shown that discretionary decisions may be influenced by the offender’s race, ethnicity, gender, or socioeconomic status, which may result in bias and discrimination. Moreover, discretionary decisions are subject to human error and may be influenced by personal biases or subjective factors, such as the mood or emotional state of the decision-maker.

To mitigate the potential risks of discretionary judgments, criminal justice professionals are often trained to exercise their discretion in a manner that is consistent with the law and ethical principles. Professional standards and guidelines, such as the American Bar Association’s Standards for the Defense Function, provide guidance to criminal justice agents on how to exercise their discretion in a way that is fair, just, and consistent with legal and ethical norms. Additionally, criminal justice agencies may implement oversight mechanisms, such as internal review boards or external monitoring bodies, to ensure that discretionary decisions are made in accordance with established procedures and guidelines.

Discretion is a critical aspect of the criminal justice system that allows criminal justice agents to exercise their judgment in specific situations based on their professional expertise and knowledge. Discretionary decisions are essential to producing just outcomes in individual cases, but they also pose challenges and potential risks, such as inconsistency and bias. To ensure that discretionary judgments are made in a way that is consistent with legal and ethical norms, criminal justice professionals must receive adequate training and guidance and be subject to oversight mechanisms that promote transparency and accountability.

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      • Kurlychek, M. C., & Bushway, S. D. (2002). Exploring the role of discretion in criminal justice. National Institute of Justice Journal, 248, 14-19.

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Last Modified: 04/25/2023


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