Why is discretion important in the criminal justice system

Programs Law and Economics. Alan J. Auerbach, the Robert D. The credible estimation of causal effects is a central task of applied econometrics. Two tools for this purpose that The rules themselves are usually the result of discretion by other actors in the criminal justice system, such as the legislature, which has created the criminal code for the jurisdiction.

However, even the most detailed rules allow for discretion, and it is possible that this discretion will allow actors subject to the rules to countermand or contradict the rules. The best example of this type of contradiction comes in the case of mandatory sentences, where legislative intent is frequently averted through the use of prosecutorial discretion.

In the case of sentencing, disparity involves the application of different punishments to cases that appear to be identical on the merits, or alternatively, the application of same punishment to cases that appear different.

It is common to focus on disparity along a particular dimension, such as race. Disparity in this framework takes on a different meaning, and refers instead to the fact that individuals with a given characteristic are over- or under- represented in the criminal justice system relative to their representation either in the population or in the commission of a type of crime.

Racial disparity is further decomposed into two types: warranted or unwarranted. Warranted disparity is the variation in outcomes due to legally relevant factors such as criminal history, crime type, and crime severity, which are correlated with race. Unwarranted disparity is the variation in outcomes that can be reasonably identified as being the sole result of race or other extralegal factors e. 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. Permissions Icon Permissions. Article PDF first page preview. Issue Section:. You do not currently have access to this article. Download all slides. Sign in Don't already have an Oxford Academic account?

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