Discretion in the Criminal Justice System

Shawn D. Bushway and Brian Forst

in Criminology

ISBN: 9780195396607
Published online March 2011 | | DOI:
Discretion in the Criminal Justice System

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Discretion is the latitude granted officials to act under a formal set of rules and in a public capacity. 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. Even if executed “within” the rules, however, discretion can lead directly to disparity, where “like” cases are treated differently. 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.g., gender) after all legally mandated sentencing factors are taken into account. This framework crystallizes the importance of rules in the empirical analysis of discretion. Any analysis that does not fully account for the legally mandated process (and factors) runs the risk of mistakenly labeling disparity as unwarranted when, in fact, it may be “warranted” according to the rules of the system. But it also raises the specter of too much deference to the rules, especially in cases where the rules themselves have the potential to create disparity, as in the case of federal rules that call for tougher sanctions for dealing in “crack” cocaine rather than powder cocaine. 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.

Article.  7398 words. 

Subjects: Criminology and Criminal Justice ; Criminal Justice ; Criminology

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