NCJ Number
46115
Journal
Journal of Psychiatry and Law Volume: 5 Issue: 1 Dated: (SPRING 1977) Pages: 101-131
Date Published
1977
Length
31 pages
Annotation
THE POTENTIAL FOR ABUSE OF JUDICIAL DISCRETION IS EXAMINED IN LIGHT OF PSYCHOANALYTIC DISCOVERIES, WITH SPECIAL ATTENTION TO FREUDIAN THEORIES REGARDING THE DEVELOPMENT AND FUNCTION OF THE SUPEREGO.
Abstract
EXAMPLES OF THE EXCESSIVE, HARMFUL, AND DANGEROUS DISCRETIONARY POWERS SATURATING THE AMERICAN LEGAL SYSTEM ARE CITED, INCLUDING THE UNDULY BROAD DISCRETIONARY POWERS EXERCISED BY THE U.S. PAROLE BOARD AND THE FEDERAL TRADE COMMISSION AND THE EXCESSIVE DISCRETIONARY POWERS OF POLICE OFFICERS, PROSECUTORS, AND JUDGES. IT IS ARGUED THAT SUCH DISCRETIONARY POWERS INEVITABLY INVITE ABUSES, PARTICULARLY THOSE ABUSES WHICH STEM FROM THE ABILITY OF HUMAN UNCONSCIOUS AGGRESSION AND HOSTILITY TO SO PRESSURE ONE'S EGO AS TO DISTORT AND SUBVERT THE INTENT OF DISCRETIONARY POWERS. BECAUSE, IT IS ARGUED, HUMAN BEINGS ARE BORN 'CRIMINAL' IN THE SENSE THAT THEY ARE EXTENSIVELY ENDOWED WITH IMPULSES WHICH, IF UNCHECKED, LEAD TO ANTISOCIAL CONDUCT, THEIR SUPEREGO--AS THE MAIN RESOURCE IN THE STRUGGLE OF THE EGO TO DEFEND THEM AGAINST THE EFFECTS OF THE EXPRESSION OF POWERFUL AGGRESSIVE AND VIOLENT FORCES--NEEDS ALL THE HELP IT CAN GET FROM CUSTOM, HABIT, TABOO, RELIGION, ACCEPTED MORALITY, AND THE LAW. THE DISCRETIONARY POWERS GRANTED TO JUDGES, PROSECUTORS, AND POLICE OFFICERS, HOWEVER, CONSTITUTE A LOOPHOLE; THAT IS, WHERE EXTRAORDINARILY BROAD DISCRETIONARY POWERS ARE GRANTED TO OFFICIALS, THE EXPRESSION OF ANTISOCIAL IMPULSES IS ENCOURAGED. IT IS SUGGESTED THAT ONE WAY TO MINIMIZE THE POSSIBLE EFFECTS OF A PROSECUTOR'S UNCONSCIOUS AGGRESSIVE DESIRES WOULD BE FOR LEGISLATURES OR THE COURTS TO PROMULGATE RULES GOVERNING THE EXERCISE OF PROSECUTORIAL POWERS. FURTHER, THE POSSIBLE EFFECT OF JUDGES' UNCONSCIOUS HOSTILITY AND SADISM ON SENTENCES THEY RENDER COULD BE REDUCED BY FINDING WAYS TO STRENGTHEN THEIR MORAL FACULTY OR SUPEREGO. REFERENCE NOTES ARE PROVIDED. (KBL)