Role Of Discretion In The Criminal Justice System

Discretion in Criminal Justice
This day in age discretion is an enormous deal in the scope of criminal justice, whether more discretion is being granted, or more is being taken away from the system as a whole, it is a massive topic to be discussed. Discretion is defined as the power or right to decide or act according to one’s own judgement in a given situation (“Discretion” n.d). Today I am going to tell you about discretion in three different ways, firstly I will explain the use of discretion in policing, then I will explain how discretion is used or not used in courts and sentencing, and finally I will tell you why I feel discretion is an necessary part of our criminal justice system here in the United States of America.
The first place

that numerous people experience discretion in the field of criminal justice is with our daily dealings with police. Frequently we don’t even realize that the officer used discretion to let us go on our merry way, or whether they used it to decide to not let us leave. A great example comes from an incident that happened to me in 2009 in Tacoma, WA. I was driving along minding my own business on a nice sunny Washington day, when I stopped at a stop light and there was a Porsche Boxster and a Honda Civic in the 2 lanes besides me, and of course as a car guy I saw this as an excellent situation to show off the power of my highly modified Volkswagen Jetta. When the light turned green all 3 vehicles shot off the line in downtown Tacoma and quickly sped off racing, it was at this time that a police officer pulled out from a complex on a side street and proceeded to pulling all 3 vehicles over for street racing. When the officer got out of his vehicle he proceeded to talk to the people in the Honda Civic, then he moved on to the gentlemen in the Porsche Boxster, and finally in the front, he came to talk to me. The officer kindly asked for my license and registration and out of habit of being active duty I gave him my military identification as well. Upon receipt of my military ID he asked me if I was stationed at Ft. Lewis, to which I answered yes. Then he asked me what unit on Ft. Lewis I was with and I responded that I was in 3rd brigade 2nd Infantry division 5th battalion 20th infantry regiment, or for short I was in 5/20. Upon supplying this information the officer promptly said “the tweeeeeezy” which is what people who were in this unit referred to it as. After his excited expression of our unit nickname he told me that he too served in the 5/20 before he was a law enforcement officer, and to this he said you just saved all 3 cars from serious trouble. He went back to his car I’m assuming to check if anyone had any warrants or other issues on their record, then returned to each car to let us go on our way. I use this example because at the lowest level in criminal justice is your basic patrol officer, and in this role I feel like law enforcement officers are afforded the most discretion in the system today. A police officer has the choice in many cases whether he wants to cite, arrest, or detain an individual based upon their personal feelings about how the interaction is unfolding. Now with this said discretion can also go in the opposite direction, if a law enforcement officer has pulled you over and has a gut feeling that something more is going on, they have the discretion to decide to investigate further even if the stop was just a pretext stop based on a much lesser infraction like not using a blinker, or maybe a license plate light being out. So as we go throughout dealings with police officers remember that they are the gatekeeper to whether you are going home, or you are going to jail, and a lot of this discretion is based upon the interactions you have with them. We all must remember that police officers are people just like us, they have wonderful and lousy days, and they have a family that they would like to return to safely after each shift. The discretion they use in their daily dealings with the public is something that each of us must respect because as law enforcement officers their discretion is the most wide ranging when it comes to the criminal justice system and its representatives.
Courts and sentencing have changed much over the ages from some of the earliest written laws and punishments from the Code of Hammurabi, to the English Common Law, and now to the codes and statutes we use in our society today.

One of the many elements that have changed is the amount of discretion that is allowed pertaining to certain actors in our criminal justice system. It used to be that judges were allowed a great deal of discretion when it came to sentencing an individual and they could hand out sentences based on a more individual case by case basis. It seems that today the discretion has been mostly removed so there is no longer a real sense of individual justice, it now seems like the sentences are more of an equation of sorts where the offenses and aggravating or mitigating circumstances are put into a formula and the sentence range is spit out for the judge to interpret. With this setup there is minimal discretion offered to judges to sentence someone unfairly. It seems as though the prosecutors of current times have been given less discretion as well, they to fall into the equation phenomenon and the only real discretion they are given is when offering plea deals. With the majority of these changes being more current I will present an example of how discretion was used by a judge in my own case in 2005. I received a speeding citation for going 173 mph in a 65 mph zone on the US-1 highway between Sanford and Raleigh, NC. After receiving this citation I had a court

date that landed in mid-September when I just so happen to be rapidly activated with the 82nd Airborne Division to Joint Task Force Katrina for the hurricane relief efforts. Upon returning I had been granted a continuance and had a new court date of mid-October. When I made it to court that day, and was finally called, the judge asked me what my reasoning was for driving so fast, to which I asked if I could approach and speak with him privately. I walked up to the judge to explain myself and had no real solid reason to provide him, so I stressed that I had learned a valuable lesson and would not be doing anything of this sort again. When I returned to my stand to receive my sentence the judge thanked me for my service and sentenced me to 1 year of a suspended license, 1 year of unsupervised probation, and a $250 fine plus court costs. Being as I was expecting a much harsher punishment I feel that the judge in this case used discretion in the fact that he could have punished me much harsher but due to my service in the military he was more lenient. This is only one example of how discretion can be used by judges in our criminal justice system and I am sure there are countless more like it.
The criminal justice system in the United States is full of different levels where discretion can be used, and in recent years policies have been enacted to limit the amount of discretion used by its officials. I feel like limiting the amount of discretion used is a powerful tool, although in some cases discretion is a valuable concept. The two personal examples I used previously show how it can be used incorrectly, in the case of my policing section, and correctly in my excessive speeding in the courts and sentencing section. These are my personal opinions so interpret them as you will. I feel the removing of discretion at any level can have beneficial or adverse effects on all of the other levels of the system. An example would be how discretion has been taken away from judges, though because it was removed there; prosecutors have been given more discretion in sentencing. With that said I think we should give some of the discretion back to provide individualized justice based on the whole case presented. In a case where 2 people have committed the same crime I truly feel that a person’s character and prior record should be reflected in their sentence. Not to say someone with an impeccable record should get completely off with a crime because everyone should be punished, on the other hand maybe someone with a clean prior record and exceptional character should be given a lesser sentence for the same crime than someone who has poor character and long rap sheet of prior offenses. Discretion is a very essential aspect of all of our dealings with law enforcement, courts and sentencing, and the criminal justice system as a whole that it should not be removed completely for the sake of equal punishments when no two cases are the same, and no two people are the same.
So as we can see the topic of discretion in criminal justice is much larger than we could even imagine, and there is no clear cut way to fix the changing levels allowed in our system today.

To close, I spoke about discretion in policing, discretion in courts and sentencing, and why I feel that discretion is necessary. I have only touched the tip of the iceberg so to speak on the topic of discretion and as we all understand, the tip of the iceberg isn’t what you worry about, it’s the massive ice below the surface that is the real issue. It will require the coming generations to figure out how discretion legitimately should be used or not used, and it’s up to us to make this great United States a fair and just country for us

all.