“In the Criminal justice system the police, the prosecutors and corrections are afforded discretion with regard to enforcing and interpreting the law. ” Here I will discuss both pros and cons with regards to the fair administration of justice in the United States. The Police The police are afforded a wide range of discretional powers, covering things from deciding whether or to arrest someone to determining disciplinary actions in the workplace. With regards to deciding to arrest someone, I can see many reasons why this discretion is necessary.
For example the police come across two young girls in a park smoking marijuana. Now the law says lock them up, however the police can use their discretion and decide to lecture the girls about the dangers of drug use and let them off with a warning. This is a win-win for everyone involved the girls don’t get in trouble and the police can go back to focusing on more important crimes. However there are instances where this discretion can be a hindrance or annoyance to people in a neighborhood. Let’s say there is a young man standing in front of his building, the police walk up and tell him to move along.
Now as far as the young man knows he’s not breaking any laws by standing there so he challenges the police’s authority. A few words are exchanged and the young man is arrested and charged with resisting arrest, the charges don’t stick and the case gets thrown out but the police were justified within the realm of their discretion to arrest him even though he broke no laws. The same goes for the discretion afforded to police with regard to the use of force. It is my opinion that they have too much leeway in this area.
How can we the public differentiate between whether the use of force was justified or if that particular cop was having a bad day? We can’t. A cop can punch a 15 yr old girl in the face of shoot a man 40+ times and not be prosecuted for it. It all falls under their discretion, did they believe their lives were truly in danger? We may never know but having that that discretion to fall back on has allowed many a cop to get away with excessive uses of force. There is also the discretion police have in the workplace when it comes to disciplinary actions of officers.
One can clearly deduce the logic for such a system. It is in the best interest of the commanding officer to maintain moral to give an officer a slap on the wrist for something like incorrectly filing a form or time spent in the station than to throw the book at them for every minor infraction. The downside here is that officers end up with a feeling that can’t be touched, that the rules don’t apply to them. This to me is the overall issue when it comes to the discretion afforded to police. Not the amount of it but the abuse of it.
Particularly when dealing with the youths. Both sociological and psychological factors influence the use of police discretionary powers. There are said to be strong relationships between authoritarianism, for example, and justice outcomes. Other measures, such as cynicism and punitiveness, have been observed to be influential predictors of police behavior. Extending the work on jury decision-making, along with other police research, the present research examines use of police discretionary powers with young offenders.
Sworn police officers from two jurisdictions, New Zealand and New South Wales, responded to written surveys about their past and intended future behavior surrounding four crimes most commonly conducted by young offenders. In all, over 500 officers took part in the studies. Further, participants responded to a battery of personality and attitude questionnaires, along with questions about situational variables normally taken into consideration by officers. Results show that police behavior towards the same offending varies greatly, both within and across jurisdictions.
New Zealand police officers were much more likely than New South Wales police officers to report that they diverted, rather than arrested, young offenders who had committed shoplifting and burglary offences. However, when responding to scenarios of underage drinking and assault, it was New South Wales police who were more likely to divert young offenders. There were very few significant relationships between attitudes and behavior when examining either group, with significant results possibly being a side effect of large sample sizes.
Further there were few significant relationships when considering demographic or situational variables. However, in an exploration of police personality, through cluster analysis, evidence was found for different 'typologies', or resonances, of police. The results indicate that police are not an homogenous group. In addition, quite complex relationships between measures of police behavior and individual difference were found within the resonances, with effect sizes showing moderate results.
The findings support the need to investigate further personality typologies and extend them to the examination of attitude-behavior relationships. In addition, research into the use of an attitudinal measure, such as discretionary ideology, as an alternative to measuring behavior could be expanded. Moreover, broadening of the research into additional areas of the juvenile justice systems, such as legal representatives, magistrates, and youth detention centre officers, would provide further insight into the appropriate use of discretion within juvenile justice for both minor offending and more serious offending.
Basically the police have been studied and proven to have normal tendencies just like everyone else, they react according to their emotions and that is not all of them but an alarmingly large number of them do. Overall I believe that the discretion afforded to the police is a necessary evil capable of being manipulated and abused when placed in the wrong hands. The Courts Just like the police the courts are afforded discretionary powers as well. Discretionary power is the ability to act or make decisions according to one's own judgment.
Judicial Discretion Supreme Court primarily exercises judicial discretion over two related areas. Granting Extraordinary Writs, such as writs of habeas corpus, mandamus, prohibition, and certiorari, which allows the Court to command action from certain parties or official bodies for the benefit of the petitioner. The scope of and application of this authority is outlined in Rule 20 of the Supreme Court Rules. Discretionary Review Authority allows the Court to decide which cases it deems worthy of hearing under its appellate jurisdiction.
Discretionary review is closely tied to extraordinary writs, as the authority is exercised by issuance of a writ of certiorari, or order to the lower courts to transmit case files when a petition is granted. Congress allowed the Supreme Court discretion over cases involving diversity, patent, revenue, criminal and admiralty issues in the Judiciary Act of 1891, and extended their authority to include the majority of cases in the Judiciary Act of 1925 (also called the Certiorari Act), legislation designed to reduce the justices' workload without increasing the size of the Court.
At present, the Court has complete discretion over the cases it hears, and is no longer subject to mandatory appellate jurisdiction. Legislatures, the president and the governors of the various states, trial and appellate judges, and administrative agencies are among the public officers and offices charged with making discretionary decisions in the discharge of public duties. All discretionary decisions made are subject to some kind of review, and are also subject to reversal or modification if there has been an abuse of discretion.
An abuse of discretion occurs when a decision is not an acceptable alternative. The decision may be unacceptable because it is logically unsound, because it is arbitrary and clearly not supported by the facts at hand, or because it is explicitly prohibited by a statute or rule of law. Discretion in decision making can be viewed from the perspective of the flexibility and choices granted to the decision maker based on the decision being made. Only the Constitution, through judicial enforcement, can limit discretionary decision making by legislative bodies to pass laws.
Great flexibility is granted to the executive branch in the area of foreign relations decision making. Statutes and prior judicial decisions limit the flexibility and discretion of a judge in a court of law. And Congress has granted broad decision-making authority to administrative agencies and their administrators, giving them great flexibility to make decisions within their area of concern. Legislative Discretion Legislatures have very broad discretion to create and pass laws that prohibit, regulate, and encourage a wide variety of activities. In Article I, Section 8, of the U. S.
Constitution, Congress is empowered to "make all Laws which shall be necessary and proper" for carrying out its enumerated powers. Most state legislatures are empowered by similar language from their state constitution. An example of a proper exercise of legislative discretion is to make stalking a crime and to make that crime punishable by fines or imprisonment. The discretion of legislatures is also limited by the U. S. and state constitutions. A state may not pass a statute that allows the police to search any person's residence at any time for any reason, because that statute would clearly violate the U.S.
Constitution's Fourth Amendment protection against unreasonable searches and seizures. Executive Discretion Executive discretion, like that vested in the president by Article II of the U. S. Constitution, is most evident in the area of foreign affairs: the president is the commander in chief of all the military forces and also has the power to make treaties with other countries. If Congress is silent on a particular issue — that is, if Congress has not passed a specific statute or resolution concerning that issue — then the president has broad discretion to act.
This can be particularly important in the area of foreign policy during war or other military action, when decisions must be made quickly in response to rapidly changing circumstances. Administrative Agency Discretion Legislative, executive, and judicial discretion in decision making is limited within the structure of the three branches of the U. S. government as established in the Constitution. Each branch is subject to the influence, review, and even rejection of certain decisions.
Administrative agencies, granted authority by Congress to administer specific government programs and areas of concern, operate outside of this tripartite system, and many decisions made by administrative agencies are protected from review. For this reason, the administrative branch of both the federal and state governments has often been referred to as the headless fourth branch of government. The U. S. Constitution does not expressly grant administrative authority. However, Congress may create administrative agencies as an extension of its authority to make laws that are necessary and proper, to help it execute its powers.
The president may appoint the heads of these agencies under a general grant of authority to appoint "public Ministers and Consuls" and "all other Officers of the United States, whose Appointments are not herein otherwise provided for" The judiciary, under its very broad grant of authority to hear all cases in law and equity, has a right, in some circumstances, to review and overturn administrative decisions.
Administrative Agency Discretion Legislative, executive, and judicial discretion in decision making is limited within the structure of the three branches of the U. S.government as established in the Constitution. Each branch is subject to the influence, review, and even rejection of certain decisions. Administrative agencies, granted authority by Congress to administer specific government programs and areas of concern, operate outside of this tripartite system, and many decisions made by administrative agencies are protected from review. For this reason, the administrative branch of both the federal and state governments has often been referred to as the headless fourth branch of government. The U. S. Constitution does not expressly grant administrative authority.
However, Congress may create administrative agencies as an extension of its authority to make laws that are necessary and proper, to help it execute its powers . The president may appoint the heads of these agencies under a general grant of authority to appoint "public Ministers and Consuls" and "all other Officers of the United States, whose Appointments are not herein otherwise provided for". The judiciary, under its very broad grant of authority to hear all cases in law and equity, has a right, in some circumstances, to review and overturn administrative decisions .
Courts reviewing administrative decisions for abuse of discretion give great deference to the administrator or agency, which not only is an expert in the area of concern but also had access to all the facts that influenced the decision. This "hands-off" approach gives administrative agencies the opportunity to execute the authority granted them by Congress efficiently and effectively. In my opinion the amount of discretion afforded to each branch government is necessary more or less to a certain extent to maintain the system of checks and balances that the separation of powers were created to enforce.
Again like with anything there is room for abuse and that is something will always have to be contended with. There are good officers and bad as well as good judges and bad judges. The task is left to the oversight committees appointed to keep all these folks in line. While some abuse the discretionary powers afforded to them I do still see the need for such allowances. Hopefully one day we will see some clear cut guidelines when it comes to certain issues such as the use of force which in my opinion is the most commonly abused.
- Professor Ron Clare, BMCC
- Parker, Ann Louise. “Differential use of discretionary powers police and young offenders”. 2004 School of International studies, University of South Australia http://arrow. unisa. edu. au:8080/vital/access/manager/Repository/unisa
- http://wiki. answers. com/Q/What_are_the_US_Supreme_Court's_discretionary_powers
- http://wiki. answers. com/Q/What_are_the_US_Supreme_Court's_discretionary_powers
- http://www. law. cornell. edu/rules/supct/20. html
- http://www. jstor. org/stable/1120583.