Discretion In The Criminal Justice System Essay


Pranav Nagaraj

Assess the role of discretion and its application in the criminal justice system.

Discretion refers to the freedom to decide what should be done in a particular situation. This can beseen in both a positive and negative light as the police and court can both use discretion which can bedamaging to either party in court in terms of achieving justice. The role of discretion within the criminal justice system has many advantages and disadvantages in the way it deals with achieving justice forindividuals. Discretion can be explored through contemporary examples within the criminal justicesystem from the investigation process till the punishment.The Law Enforcement (Powers and Responsibilities) Act 2002 outlines the powers the police have been

given and can carry them out under their discretion. In the newspaper article “NSW police probe‘unnecessary Tasering” (ABC News

15/06/09) we see how a 38 year old man is taking civil action for thealleged misuse of a Taser by NSW police. However the State defended this as the police used it only tobring perpetrators to justice and that the sight of a Taser has been able to resolve conflict in 55% of thetime it has been pulled from the holster. The Tasers have also been fitted with built in video cameraswhich record as soon as it is unholstered in order to discourage improper use of them by the officers.This shows that police powers regarding Tasers can be used at their discretion and that it is only used inorder to benefit the criminal justice system and has been effective in benefitting the justice system.In some situations when police use their discretion, it may be both effective and ineffective. In the

Newspaper article “No Toying with Doncaster pistol pointer” (Manning Ham

-leader 07/03/12) we see

how police used “discretion when applying the law and focus on the intent of any person found carryingan imitation firearm” after a series of calls were made to police where a

44 year old man used a toy gunand pointed it at traffic. After a reform in July last year and toy which could be mistaken for a legitimategun could be classified as a prohibited weapon, which the possession of, carries a maximum penalty of two years. However due to police discretion this prank was seen as a prank and the offender escapedreceiving up to 2 years imprisonment, showing the benefits of discretion for the accused in this case.

However the victims in this case said that they “feared for their lives”

and believed that justice was not

achieved since the accused’s punishments were far from what they deemed sufficient.

This case showshow police discretion has had both a positive and negative effect from a single case.The burden and standard of proof is essential to the criminal trial process. The collection of evidence isup to the discretion of the detectives and is a crucial aspect in the criminal trial process. In the

case of “Rvs Porter (1936”, where Porter used the defence of insanity for the murd

er he committed. This type of discretion allows an individual for the chance to be actively involved within the trial process.Sentencing and punishment has actively involved the discretion of judges and magistrates in affectingthe decision of the senten

cing. The newspaper article “Die in Jail: Carr’s new sentences” outlines how

new laws will allow judges to use their discretion to impose a penalty below the minimum standardafter giving an explanation for their decision. However if unable to give an explanation the minimumprison sentence must be imposed unless there are mitigating factors. The aim of this is to seekprotection, rehabilitation and deterrence so in order for post-sentencing considerations, judicialdiscretion is involved. The justice system commonly fails to look at the considerations of the victims and

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Philosopher, Ronald Dworkin and H. L. A. Hart refers to discretion as "the hole in the doughnut" (doughnut theory of discretion). In this standpoint, discretion is the vacant area in the middle of a ring consisting of policies and procedures.

To be able to make choices freely is called a strong sense of discretion. Discretion lies within the hole of the doughnut. Individualized judgments are often made by police officials, everyday. However, the loose definition often seems to be a bit of a challenge.

According to the researched website, the definition of police discretion is broken down into five categories: discretion as judgment, discretion as choice, discretion as discernment, discretion as liberty and lastly, discretion as a license. Discretion is not doing how you please. Police put to good use their power of discretion everyday and different issues involve different discretionary actions and some, none at all. It is the responsibility and the privilege of police officers to render or implement discretion upon their will. Authors Senna and Siegal, agree with this websites definition of discretion and the information the website offers. The authors describe discretion as the use of personal decision making and choices in carrying out operations in the criminal justice system.

Police discretion can involve the decision to make an arrest and prosecutorial discretion involves acceptance of a plea bargain or lack thereof. The textbook provides factors that influence the power of discretion that police officials hold. Factors contributing to police discretion are legal factors, environmental factors, departmental factors, situational factors, and extralegal factors. Legal factors of police discretion involve the seriousness of certain crimes. Less personal discretion is available when police confront a suspect in a case involving murder or rape than there is with an assault, domestic issue or trespass. Research suggests that police are less likely to act quickly on a complaint of domestic violence in hopes that the problem will be solved before they get there or shortly after.

Environmental factors of discretion include working or dwelling in a community that either tolerates eccentricities and personal freedoms or expects conservative, professional, no-nonsense behavior on the part of the civilians living in that area as well as social climate, alternatives, attitudes of the community, and treatment facilities. Discretion plays a role in that an officer holding personal values in opposition to members of the community has the ability to exercise discretion in ways that disagree with the community's values, resulting in effective law enforcement. Departmental factors of police discretion are the policies, practices, and customs of the local police department. Each and every department country wide has a variety of officials in the organizational hierarchy to decide and agree on discretionary issues. For example: depending on certain circumstances, patrol officers may be asked to issue more tickets and make more arrests or to refrain from arresting given certain circumstances. The size of the department is a factor that determines the level of officer discretion within that particular department.

Again, no department mirrors the discretion guidelines of another department. Another factor involving police discretion is situational instance. These are instances such as demeanor (attitude of offender), crime scene, back-up and witnesses. These are issues in which particular crimes are attached to certain degrees of discretion. The manner in which a crime or situation is encountered is also a contributing factor in regards to police discretion.

Other factors that might influence police and their use of discretion are the seriousness of the crime, weapons, injury, and drug or alcohol presence etc. When it is the officers choice to become involved in a situation without the benefit of a summons or complaint, he is given the right to utilize maximum discretion. Lastly, extralegal factors are also involved in the role that discretion plays in the criminal justice field. Extralegal factors include consideration of the age of the victim, elderly mistreatment, gender, income, and race.

This is an important topic of Race, Culture and Gender. All of these factors listed in this paragraph greatly contribute to the instances of police and their discretionary power. The website I located offers information on the causes of discretion and these causes are similar to Senna and Siegal's factors of discretion. The website lists the causes of discretion as offender variables, situation variables, as well as system variables.

Offender variables are described as the difference in treatment that adult offender get from that of young offenders. Arrest involving force is most likely seen in instances of crime involving African Americans. Situation variables support the ideas that serious crimes are treated differently by that of discretion than less serious crimes. System variables are when the police system caters to the correctional systems when they are clogged, meaning that the police tend to become more strict when the community needs revenue and less when the correctional system is backed up.

Police discretion is a very grey area of the criminal justice system. There are different ranges of discretion for various acts of crime in our policing system. It is the power and dutiful, earned right of our law enforcers to use discretion as they feel right to do so. Discretion is used as a judgment, a liberty, a choice, discernment, as well as a license. Senna and Siegal describe factors of discretion and these factors are legal, extralegal, environmental, departmental, and situational. Combined, the factors involve discretion on class, race, gender, age, crime seriousness, weapons involved, type of crime, injury seriousness, peers, supervisors, treatment facilities, crime scene, type of encounter and witnesses.

Similarities between the website pertaining information on discretion and the textbook information really seem to similarly reflect one another in different forms although both of these the resources were really effective informative materials for gathering facts on police and discretion.

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