According to (Skolnick, 1966), discretion is the process by which actors in the system of criminal justice try to determine whether a person is innocent or guilty which leads to either sentencing or freedom. These actors include prosecutors, jury, judges, as well as police officers. Application of discretion assists them in making various decisions which include penalization as well as a mode of punishing the offender. The initial stage in which discretion is applied in the system of criminal justice is where police officers make a decision on whether a suspect should be arrested for a particular offense or not.
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Application of Discretion in System of Criminal Justice
(Cole, 2004), argues that, since discretion is applied by each of the various parties of the criminal justice system, uses of discretion may differ according to their roles as well as powers are given to them. For example, when police officers forward a suspect to a prosecutor, the decision is made on whether or not to pursue the particular charge that the suspect has been arrested for. Discretion powers allow the prosecutor to drop a case based on several considerations which include, offender’s characteristics, characteristics of an offense, likelihood of conviction as well as availability of civil remedies. Prosecutors may also make decisions on whether to reduce charges, seek indictments or have charges filed for adjudication. The second application is judicial discretion where a judge is allowed to make a decision concerning a case within a particular specification.
That is, the precedent or legislation lays down some constraints within which they expect judicial decisions to vary according to the judicial actor’s discretion. These may include probation, dismissal of charges, and setting of bails, and acceptance of pleas. Thirdly, discretion can be exercised by the jury in the system of criminal justice. Upon hearing the evidence presented before a court by the defendant and petitioner, a jury decides on a verdict based on the judge’s instructions as well as the evidence presented.
Advantages of Discretion in the Criminal Justice System
Discretion has been found to be very essential in a system of criminal justice due to its various roles in the system. One of the advantages of discretion is where it allows a variety of decisions that could not have been anticipated by bodies of legislature to be made. This is because, it’s impossible for these bodies to predict all circumstances regarding each and every crime, predict mores, and put forward laws that cover all criminal and noncriminal conducts. Therefore, the application of discretion provides room for flexibility of decisions where crimes are judged accordingly but within specific limitations put forward by law.
A high level of discretion leads to the professionalism of decisions made. That is an increased level of discretion results in considerations as well as discussions of various possibilities before arriving at final decisions. Increased discretion also provides an allowance for different laws that vary from nation to nation and region to region. This variation occurs as some countries may consider a certain aspect to be illegal while others may consider it legal. Other differences may be due to the fact that different charges are laid for similar crimes and that some nations allow a greater variety than others, calling for a high level of discretion in the system of criminal justice. (Cole, 2004)
Disadvantages of Discretion in the Criminal Justice System
(Cole, 2004), argues that, there are a number of disadvantages associated with theapple action of discretion in the system of criminal justice. These disadvantages are based on two problems, one related to the definition given to the term, while the other regards its job autonomy. Discretion has been found to receive irregular definitions which results from its ambiguity in literature. This consequently leads to irregular definitions concerning its application by the various actors in the system of criminal justice. For example, the quantitative definition of discretion does not provide means by which behavior should be measured.
A high level of application of discretion resuins to abuse of the same, where actors of the court find themselves diverting from the law or arriving at decisions based on erroneous evidence. Some may become biased in their decision-making, for example when a decision is made to favor a particular offender because he/she belongs to a similar ethnic group with the judge. A lot of discretion may also lead to possibilities of corruption among actors of the system of criminal justice.
This is where decisions are made on the basis of what will or has been given in return. Police officers, judges, prosecutors as well as other actors with authority are tempted to use their power for personal gains while in office. For example, an innocent person who is not able or unwilling to give bribe may be arrested by police officers, leaving the guilty one free. (Skolnick, 1966)
Opinion on the Amount of Available Discretion in the System of Criminal Justice
There happens to be a lot of discretion in the system of criminal justice, which has been found to increase with time. This increase has been due to research done on crimes that have resulted to a great variety of arguments concerning legality of actions as well as illegality. There have also risen disagreements in the understanding of law by prosecutors, jury, judges, and police officers, which have led to different ways in which discretion is exercised. An example of increased level of discretion is where courts take longer periods to arrive at decisions. This is because each of the various actors in the system of criminal justice wants his/her exercise of discretion to be considered.
The number of cases presented and ruled in court has also increased than before which indicates a high level of discretion. Therefore, some nations have opted to regulate the high levels of discretion by setting mandatory laws for sentencing and specifying charges for particular offences. (Radzinowicz, 1971)
In spite of the various limitations that have been found to result from an overly exercise of discretion; it still remains a very essential aspect of the system of criminal justice. The absence of discretion may lead to so many offenders in the community as well as a larger number of them in remands. Application of discretion is therefore found to keep the conveyer belt moving, where cases that receive ruling give room for more cases to be ruled upon. The current situation of inconsistency in the application of discretion has been found to result from lack of a model that gives the general procedure through which discretion should be conducted. However, actors have been urged to exercise their discretional powers fairly and effectively so as to produce an efficient system of criminal justice. (Cole, 2004)
Cole G. (2004): Criminal Justice in America: Thomson Wadsworth.
Radzinowicz L. (1971): Crime and Justice: Basic books.
Skolnick J. (1966): Law enforcement in democratic society: Wiley.