Although a substantial body of research suggests that the discretion of discretion of actors in the criminal justice system is important, there is disagreement in the existing empirical literature over its role.
Studies in this literature generally hypothesize that discretion plays one of two roles: either it serves as the means by which changing broad social norms against crime causes changes in sentencing patterns, or it serves as the means by which internal social norms of the criminal justice system prevent the implementation of formal changes in laws. We reject both of these hypotheses using data on the sentencing of California prisoners before and after Proposition 8, which provided for sentence enhancements for those convicted of certain serious' crimes with qualifying' criminal histories.
We find that an increase in the statutory sentence for a given crime can increase sentence length for those who are charged with the crime, and also for those who are charged with factually 'similar' crimes, where a 'similar' crime is defined as one that has legal elements in common with the given crime. These spillovers are consistent with neither broad social norms nor internal social norms, so we conclude that discretion takes a less-well studied form, which we call 'prosecutorial maximization.
Kleinig accordingly considers these illegal acts not as discretion but rather as a decision to engage in forbidden conduct. In a law enforcement context, discretion only concerns decisions that are made in a legal setting.
When decisions that are made by officers do not yield the desired positive results, but are made in good faith, these decisions still fall under the umbrella of discretion. Decisions made by officers without good faith are not classified as discretionary. Discretion in law enforcement, and especially within policing, is critical to both the functioning of the police department and to the relationship with the public the police department serves.
It is unusual within the paramilitary policing environment, due to the inverse relationship between discretion at the top of the rank structure and that of the lower end of the rank structure, compared to military bodies and some commercial enterprises Manning, Officers who have recently started in patrol exercise more discretion than the chief constable or the highest rank within the department. In comparison, a general in the army possess discretionary powers at a much higher level than does a low-ranking soldier.
There is an inevitable tension that exists between paramilitary agencies that require members of all ranks to follow orders and those agencies that acknowledge discretion among members of lower ranks is necessary to function.
In the military, discretion is seldom used at lower levels. Orders are given and are to be followed regardless of the feelings or desires of the subordinate. The move toward more discretion inevitably leads police services away from the military hierarchical structure to a more organic structure in which decisions are made throughout the organization Hughes and Newton, Key to the argument, however, is that some in law enforcement view professionalism as partially gauged on the amount of discretion that is afforded to an occupation, and it is in this respect that a shift toward more discretion will result in police services being more professional.
It is also important to explain how the term professionalism will be used in the context of law enforcement. More specifically, the meaning of professionalism in this context is related to the freedom of police to make discretionary operational decisions.
When discretion is removed from police due to managerialism and accountability, professionalism decreases. Klofas, Stojkovic, and Kalinich use the term deprofessionalization to describe this process.
Without discretion, it is argued, an organization loses its professionalism. The shift to more professionalism requires the need for management to proactively promote operational decisions in a manner that is reflective of an organic organization and still be able to control its members Jones, Discretion, they argue, has the potential to:. This framework crystallizes the importance of rules in the empirical analysis of discretion. For both of these reasons, any discussion of discretion must start from a review of the goals of the system and an understanding of how these goals are reflected in the formal rules of a system with many moving parts.
In their account of the American Bar Foundation survey of — Ohlin and Remington , Editors Lloyd Ohlin and Frank Remington highlight the central importance of discretion in the functioning of the criminal justice system CJS. They describe the CJS as a complicated set of interdependent actors who act on cases involving individuals accused of crimes. Samuel Walker adds that the term system is perhaps misleading, because the police, courts, and corrections are largely independent of one another, although the actions of each set of actors clearly have an impact on the others.
For example, while judges can exercise discretion only in cases involving arrested offenders that prosecutors charge with crimes, sentencing policies and practices influence the actions of police and prosecutors. Because of the salience of sentencing policy to the exercise of discretion generally, sentencing policy warrants treatment as a driver of discretion. Two other classics on discretion are also included here: First, Dworkin treatment of the subject, which distinguishes between the routine exercise of discretion and the more controversial use of discretion to alter policies viewed as misguided; and second, Gottfredson and Gottfredson , a book on discretion, which offers a thoughtful account of the essential aspects of discretion and how it can be used effectively to improve the functioning of the criminal justice system.
Dworkin, Ronald. Taking rights seriously. Cambridge, MA: Harvard Univ. This book is a legal-theory classic on discretion. It distinguishes discretion from ordinary personal decision making, not accountable to a set of standards or a higher authority p. Gottfredson, Michael R. Decision making in criminal justice: Toward the rational exercise of discretion. New York: Plenum. This text is probably best for a graduate-level class.
National Research Council Edited by Alfred Blumstein, 39— Washington, DC: National Academies. This is the introduction to the landmark National Research Council volume on sentencing.
The first chapter is a very readable discussion of the actors in the system, including the legislatures. Recommended for all readers.
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