Discretion, uncertainly, and inefficiently are rampant and essential in criminal justice. Nobody expects perfection. That would neither be good nor fair. Justice is a sporting event in which playing fair is more important than winning. Law enactment, enforcement, and administration all involve trading off the possibility of perfect outcomes for security against the worst outcomes. Policing is the most visible part of this: employees on the bottom have more discretion than employees on the top.
Philosophers such as Ronald Dworkin and H.L.A. Hart have referred to discretion as "the hole in the doughnut" (doughnut theory of discretion) and "where the law runs out" (natural law theory). In perspective, discretion is the empty area in the middle of a ring consisting of policies and procedures. And remember Davis' definition - the making of choices from among a number of alternatives? The freedom of being able to make choices is called a strong sense of discretion. In the weaker sense we would consider cases in which not only the rules don't apply, but the officer makes individualized judgments. In both sense, it's the problem of loose definition.
Some discretion terms may be helpful to analyze. Discretion-as-judgmentdiscretion is the opposite of routine and habitual obedience. It brings knowledge, skill, and insight to bear in unpredictable ways. Police are not solders who must blindly follow orders. Police must be more than competent than applying the rules; they must adapt those rules to local circumstances in a rule-bound way. Discretion-as-choicediscretion is not just a matter of realizing when you're in the hole of the doughnut, or a "grey area". It involves making personal contributions, judgment calls, exercising autonomy, and individual solutions. It's about the courage to make your own decisions, to have personal input, following your conscience, even if those decisions are reversed later by a superior. Discretion-by-discernmentdiscretion is not just about making "safe" choices, or being "soft". It's about making good, virtuous choices by habit or the wisdom that comes from age. Prudence, foresight, the ability to size up people, arguments, and situations. Tactfulness, tolerance, empathy, and being discreet are all forms of discernment. Discretion-as-libertydiscretion is not where the law ends, nor is it the same as intellectually deriving principles from rules. It's about permission to act as a free and equal agent, and using that permission in extending the rights and duties of office toward a vision of liberty, inalienable rights, and the kinds of things that no majority, rule, or principle can ever take away. Discretion-as-licensediscretion is the opposite of standard expectations. It's the privilege to go against the rules, disobey your superiors, be less than optimal or perfect all the time, all without degenerating the rules or eroding the trust between you, your superiors, or the public. License involves a sense of accountability that does not have to be formally recognized or structural.
Discretion is not doing as you please. Discretion is bounded by norms. The future of policing as a profession depends upon whether discretion can be put to good use. Two problems impending police professionalization, however, in that there are few uncontroversial areas in police work, than in other professions. Sometimes the public wants no enforcement, and other times they want strict enforcement. Citizens will scream false arrest in the first case, and some groups may file a write of mandamus in the second case.
Decision elements are grouped into three categories and summarized below: Offender variablespolice take adult complaints more seriously than those made by juveniles. Arrest and force is more likely to be used against African Americans. Citizens who show deference (good demeanor) toward police are treated more leniently. People in middle upper income brackets receive...
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