Discussions in how discretion is exercised in the legal profession often raises debate in the criminal justice system. Discretion is vastly misused in many of the criminal justice fields. Areas such as youth justice, sentencing, policing, and a host of many other legal fields need better understanding, interpretation and communication. As with many practices, the object of measuring these areas is to understand constraints on its use and areas where it can be regulated better.
This paper will reflect the role of discretion and how it is conceived in the justice system. In addition, this paper will examine how individuals elect to measure legal discretion from the public’s point of view as often the public sees only the negative terms of it. Role of Discretion in Youth Justice
Decision-making discretion in youth justice has been the concern for many of the law officials working in the criminal justice system. Presently, personnel are examining many of the factors that police face when they have to deal with youth offenders. In the past, Police did not always follow proper conduct when cases were reviewed. Officers documented different accounts from what actually transpired. Because of these ‘mixed signals’, New procedures were implemented out of fear that police were inadequately dealing with repeat offenders because they found a number of inconsistencies in police responses (Gelthorpe, L and Padfeld, 2003).
These new procedures better serve police officials in the discretionary guidelines involving youth offenders. More so, police may pursue a different approach when dealing with young offenders. Rather than using informal action or recommending charges, police may choose to refer to or recommend alternative measures (Youth Justice). In many cases, law enforcers will recommend pre or post charge alternative measures dealing with youth-related incidents.
The most common alternative measures programs assigned to youth are community service, an apology, social skills improvement, writing an essay, restitution or compensation, and other activities geared toward the specific young person (Kowalski, 1999). These alternative measures allow police to have some input in assessing, developing, and implementing a plan that will best monitor a youth’s compliance to the recommended program. Role of Discretion in Sentencing
The role of sentence discretion in trial sentencing has many law officials up in arms concerning undeserving sentence breaks. Recently, Lawrence Taylor, a former NFL star was sentenced to six years probation (no jail time) for having sex with a 16 year old girl. Many court officials and some public figures believed that the courts gave Taylor preferential treatment because he was a celebrity.
Some think the prosecutorial discretion for the DA to allow Taylor to plead to two misdemeanors rather than a felony plea was insane (Otis, 2011). What are we to make of a system in which a seemingly sweetheart deal like this happens? Who is to blame, and what can be done (Otis, 2011)? In scenarios such as the Lawrence Taylor verdict, court sentencing is usually in a no win situation.
As long as the criminal justice system is constructed and run by human beings, discretion is going to be part of it. There will be happy and sad people on both sides of the Judge’s decision. The question is not whether discretion can be eliminated in either the executive or judicial branches; the question is how it can be intelligently constrained so as to reduce unwarranted disparity in the treatment of criminals (Otis, 2011). As of date, there is no perfect answer for it. Role of Discretion in Policing
Discretion plays an important role in the line of work for every police officer. On many levels, police undergo every type of discretion needed to perform their duties daily. These discretions give greater insight in holding officers accountable and how they practice their decision-making skills. However, focus on spatially-constructed suspicion and profiling, the relationships those officers have to the threat of violence in their daily work in revealing social distance among the police force.
By focusing on the meanings that police produce during their work, and more importantly, the stereotypes, assumptions, and fears that compel them to act in certain ways, the work offers a new lens through which to view the reality of police work on the ground (Sian Miranda, 2010) More so, the area of officer discretion often revolves around sensitive issues of profiling, racism, and discrimination. Suspicion and profiling are closely related in an officer’s line of work. It can be very difficult to disassociate these factors from one another especially in crime infested communities that are largely racially disproportionate.
Many of these communities are often victimized by their own race which causes great concern for the community to entrust the police in protecting it. As in many cases, officers have the discretion to use their authority to provide good judgment for the sake of protecting to community. The police are crime fighters concerned with protecting the community from crime. Finally, one of the major concerns of police discretion involves the use of force. The issues always surround who, what, when, where, and how much use of force is submitted. As a legal term, the use of force is how law enforcers settle or prevent conflicts using the necessary measures to make it happen.
The issue surrounding the use of force is what officers consider necessary in order to prevent harm of one’s property, life, or self and how much is permissible? The ACLU and many civil rights organizations argue that police overindulge in the use force against many minorities but those statistics do not match up with these accusations. These issues will always be a concern to law enforcers. As added measure, proper training, leadership, and good supervision will continue to improve officer decision-making in this area. Role of Civilian Oversight Committees
The roles of civilian oversight committees play a huge importance in holding police accountable for their actions. These committees exist to go against the very fabric created by their own agency to make sure proper investigations are thoroughly conducted and people are held accountable. In democratic societies, the police are accountable for many things. Most prominently, police are accountable for the effectiveness with which they deal with crime and disorder, as well as for the legality, professionalism, and respect with which they treat people (Stone, 2002). ]
Under this setting, democratic police have to answer to a multiplicity of many bodies. In addition to their superiors, democratic police are accountable to the legislature, to the courts, to members of the public who seek their assistance, and to society as a whole through the press and organizations of citizens (Stone, 2002). Because of the presence of an armed police force in democratic society, there needs to be many authoritative bodies present to enforce accountability in the criminal justice field.
The creation of mechanisms for the routine oversight of police conduct on behalf of the public, mechanisms that curb or correct abuses of power, is a common project of democratic societies (Stone, 2002).
More so, It is fundamental to democratic societies that police power, including the powers to arrest, to question, and to use lethal and non-lethal force, be closely regulated, often through the mechanism of an independent judiciary, and ultimately be subject to civilian control through democratic institutions (Stone, 2002). These oversight committees challenge the current practices established by police when occasional abuse of police issues arise. Independent judiciaries are meant to be the guarantor and enforcer of fundamental rights when remedies for police abuse of power are in questioned. These remedies are applied in both criminal and civil law contexts (Stone, 2002).
Conclusion This Paper examined how discretion is exercised in the criminal justice field. This paper made reference to youth justice, sentencing, and police discretion as sample of how both positive and negative decisions can impact the communities the police serve. There is no clear, cut answer to properly train officers in the field of criminal justice in exercising discretion because situations change from moment to moment every day.
Society just has to trust that these officers are trained well enough to get past accusations of discrimination, stereotyping, and profiling. If not then there are oversight committees that will ensure that any illicit discretion potentially used will be held against the offending officer. This process holds officers accountable for their actions as no one is above the law. Exercising discretion is a very important for society to understand. It is through this understanding that communities can continue to believe that police are getting the job properly done.
Reference: Gelthorpe, L and Padfeld, N, Exercising Discretion: Decision-Making in the Criminal Justice System and Beyond (2003) retrieved on April 11th, 2011 from http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/Gelsthorpe-Padfield204.htm Otis, B, Disparate Outcomes and the Role of Discretion in Charging and Sentencing (2011) retrieved on April 11th, 2011 from http://www.crimeandconsequences.com/crimblog/2011/03/disparate-outcomes-and-the-rol.html Police Discretion with Young Offenders (2009) retrieved on April 11th, 2011 from http://www.justice.gc.ca/eng/pi/yj-jj/res-rech/discre/descript/alt-rech.html Sian Miranda, Suspicion, Violence, and Social Distance: Everyday Discretion in the South African Police (2010) retrieved on April 11th, 2011 from http://wiredspace.wits.ac.za/bitstream/handle/10539/8358/Abstract.pdf?sequence=1 Stone, C., Civilian Oversight of the Police in Democratic Societies (2002) retrieved on April 11th, 2011 from http://220.127.116.11/publication_pdf/179_325.pdf