INTRODUCTION - DISCRETIONARY DECISION-MAKING IN THE ADMINISTRATION OF JUSTICE (FROM INVISIBLE JUSTICE SYSTEM - DISCRETION AND THE LAW, 1978, BY BURTON ATKINS AND MARK POGREBIN, SEE-NCJ-46813)

• NCJ Number: 46814
• Author(s): B ATKINS; M POGREBIN
• Date Published: 1978
• Length: 13 pages
• Corporate Author: Anderson Publishing Co
• Publication Format: Document
• Language: English
• Country: United States of America

Annotation

AN OVERVIEW OF THE APPLICATION OF DISCRETION WITHIN THE DECISIONMAKING PROCESS OF THE CRIMINAL JUSTICE SYSTEM'S VARIOUS COMPONENTS IS PRESENTED.

Abstract

DISCRETION IS EXERCISED IN: (1) THE POLICE OFFICER'S DECISION TO APPREHEND A SUSPECT; (2) THE PROSECUTOR'S DECISION TO FILE, DISMISS, OR REDUCE FORMAL CHARGES; (3) THE JUDGE'S DECISION TO ADMIT A DEFENDANT TO BAIL RELEASE ON RECOGNIZANCE, GRANT OR DENY TRIAL MOTIONS, SUSPEND SENTENCE, RELEASE ON PROBATION, OR IMPOSE SEVERE OR MINIMAL SENTENCE IN PRISON; AND (4) THE PAROLE BOARD'S DECISION WHETHER OR NOT THE RELEASE A PRISONER FROM INCARCERATION. DISCRETION IS A CRITICAL ELEMENT MANIFESTED AT ALMOST EVERY POINT OF THE CRIMINAL JUSTICE SYSTEM, AND THE ISSUE IS NOT TO AVOID DISCRETION COMPLETELY -- INASMUCH AS DISCRETION AND JUSTICE ARE NOT INCOMPATIBLE CONCEPTS -- BUT TO DETERMINE THE DEGREE OF IMPACT WHICH THE EXERCISE OF DISCRETION HAS UPON THE ADMINISTRATION OF JUSTICE. THE INVISIBLE SYSTEM OF JUSTICE THAT LIES BEYOND THE FORMAL SCRIPTURES OF THE LAW DERIVES ITS POWER FROM THE FAILURE OF STATUTORY LAW OR ADMINISTRATIVE CODES OF REGULATION TO SPECIFY MEASURES APPLICABLE TO ALL CONTINGENCIES ENCOUNTERED IN THE COURSE OF A DECISIONMAKING PROCESS. EACH PART OF A VARIETY OF REASONS, AND BECAUSE EACH PART OF THE LEGAL STRUCTURE IS PRIMARILY CONCERNED WITH ITS OWN PARTICULAR NEEDS AND FUNCTIONS, IT BECOMES DIFFICULT TO RESOLVE CONFLICTS THAT INVOLVE THE ACTUAL UTILIZATION OF DISCRETIONARY JUDGMENTS OR THE AUTHORITY TO EXERCISE DISCRETION. THE VARIETY OF CONTEXTS IN WHICH DISCRETION MAY BE EMPLOYED AND THE DETAILS CONCERNING ITS ACTUAL EXERCISE -- THE STATUTORY AUTHORITY DEFINING THE FORMAL LIMITS OF POWER, THE EFFECTIVE LIMITS OF AUTHORITY, AND THE DEGREE OF CONTROL EXERCISED BY HIGHER AUTHORITY OVER DECISIONMAKING -VARY CONSIDERABLY AMONG THE INDIVIDUAL COMPONENTS OF THE CRIMINAL JUSTICE SYSTEM. THE ROLE OF DISCRETION IN THE FUNCTIONING OF THE POLICE, THE PROSECUTOR, THE JUDICIARY, PRISON ADMINISTRATION, AND PAROLE BOARDS IS BRIEFLY REVIEWED. RELEVANT COURT DECISIONS ARE CITED, AND REFERENCE NOTES ARE PROVIDED. (KBL)