systems from mental health to education, as well as criminal justice. Because of the power that police have to deprive citizens of their life and liberties, the role of discretion in policing is of great concern to scholars and th… limits of discretion vary from jurisdiction to jurisdiction. Parole officers face similar discretionary decisions when recommending or denying incarcerated defendants early release or violating there conditional release agreements. There is a middle path. Criminal Justice System Criminal Justice System Introduction Criminal justice changes in rules, procedures, and terms from state to state. The punishment should closely follow the commission of a crime so the offender connects the punishment with the wrongfulness of the crime. He conducted work using bodies of deceased criminals. Corrections is But the answer is not to dismantle prosecutorial discretion – that would, to use the old expression, “throw out the baby with the bathwater.” The prosecutor’s job is to seek justice, not conviction. The Miranda decision made the reading of “Miranda Rights” a part of routine police procedure to ensure suspects were informed of their rights. Law enforcement, out of necessity, must engage in selective enforcement regarding the enforcement of laws and must choose from a variety of alternative actions in order to resolve the situation. "1 Discretion is exercised 1 Roscoe Pound, "Discretion, dispensation and mitigation: The Throughout the criminal process discretion is evident, from the police to the regulatory agencies right through to the Crown Prosecution Service. 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. employed at the local level. Get Your Custom Essay on Discretion in the Criminal Justice System Just from $13,9/Page Get custom paper Although it is common throughout the criminal justice system, some authoritative figures don’t use discretion in a way to guide punishments; they stay in accordance with established guidelines. Discretion provides freedom to make decisions, specifically it is the power to make decisions on issues within legal guidelines. The limits of discretion vary from jurisdiction to jurisdiction. Law enforcement officers start the discretionary process. Each of their theories resonate is current criminological studies and many of their thoughts can be compared to current issues. Procedural law therefore drastically effects how substantive law is enforced. it keeps the judiciary and defense attorneys from becoming corrupt. Police Arizona v. Gant (2009) held that police may search a vehicle if it contains evidence of the offense of arrest. Although discretion is a key component to law enforcement, most discretionary decisions are based on misdemeanor or traffic enforcement. sentence they may impose. You can view samples of our professional work here. In the State of Florida, substantial assistance is an agreement between the State, the defendant, the judge, and the assigned law enforcement officer to provide assistance with criminal information in lieu of a prison sentence. This theory closely resembles today’s proof beyond a reasonable doubt. Although their theories are well over 100 years old, they can be compared and contrasted to current criminological thought. Discretion exists when courtroom actors (police officers, attorneys, judges) have the flexibility to choose an appropriate response to a situation. Discretion, in its simplest terms, is when one makes an informed choice between more than two options. While administrators are often bound by bureaucratic regulations, law enforcement professionals at lower levels of the organization possess great leeway in the manner in which they perform their jobs. The discretion of legislatures is also limited by the U. S. and state constitutions. Beccaria’s principles have been incorporated into the French penal code of 1791 and influences leaders such as Catherine the Great and Frederick the Great. Durkheim viewed the function of punishment as a “passionate reaction” to crime. For example, discretion should be used for a first time offender for speeding but should not be used for a first time offender of rape. The provisions of the Fourteenth Amendment including the Due Process Clause will raise questions on Bill 1070’s affirmation. For instance, a person arrested for driving on a suspended license, may not have their vehicle subjected to a search. The process begins with the decision to arrest by a law enforcement officer in the field. These components of the judicial system do not have total discretion; they must act within the admittedly very broad boundaries of the principle of legality. He found th… The five rights are derived from the Fifth Amendment and were therefore only applicable to the federal government. States, however, are free to abolish grand juries and may use preliminary hearings as a substitute. The debate, however, surrounds the relative limits to this discretion. ", To Criminal Justice System flowchart & table of contents. Vorenberg, "Some abstract notes on the issue of discretion. Unfairness that may exist is rare and aberrant, not a systematic feature of the criminal justice system. Once an agreement has been made between prosecuting attorneys and defense attorneys, the judge may use his discretion by approving the state recommended solution, or amending the agreement. Discretion is more formally defined as “the authority to make a decision between two or more choices” (Pollock, 2014, p. 2). Do you have a 2:1 degree or higher? Each of their theories resonate is current criminological studies and many of their thoughts can be compared to current issues. For example, discretion should be used for a first time offender for speeding but should not be used for a first time offender of rape. The penalty known as \”no conviction recorded\” is an example of a judge\’s use of discretion in sentencing. primarily a function of State governments. As with adults, law enforcement serves as the gatekeeper to the justice system. the judges discretion in sentencing by passing mandatory sentencing laws Very few crimes are under exclusive Federal jurisdiction. decisions. anticipate local mores, and enact laws that clearly encompass all conduct Beccaria believed torture would subject potentially weak suspects to incriminate themselves before they could be brought before a court of law. Therefore, many cases may be issued a nolle prosequi, or downgraded to a lesser charge. Focusing on police discretion to arrest and the prosecutor's discretion to charge, the author notes that justified discretion is that which ameliorates the harshness of the literal criminal law. Examples of selective observation in criminal justice Pages: 5 (1132 words) The Differences Between Criminology and Criminal Justice Pages: 2 (353 words) Give an example of a contemporary issue currently facing the criminal justice system Pages: 2 (358 words) Once the case is forwarded to the prosecuting attorney, multifarious avenues of discretionary decisions are available to resolve a case. He theorized, “A criminal is an atavistic being who reproduces the ferocious instincts of primitive humanity.” This theory was outlined in his classic 1876 work, L’uomo Delinguente. is often delegated to professionals. Beccaria stated, “Punishment should fit the crime.” He believed theft should be punished with fines, personal injury with physical punishment, and serious crimes against the state with the death penalty. with the day-to-day response to crime are expected to exercise their own For instance, criminal law defines what constitutes a crime. Cesare Beccaria, Cesar Lombroso, and Emile Durkheim developed their own theories of criminological behavior during specific time periods. Officers must use discretion when deciding to enforce the law when certain situations arise. The five rights that have been applicable to the states by means of the Due Process Clause of the Fourteenth Amendment are: indictment by a grand jury for a capital or major crime, prohibition of double jeopardy, prohibition on self-incrimination, a person cannot be deprived of life, liberty, or property, and prohibition on the taking of private property by the government without just compensation. Lombroso claimed to have found a variety of bodily features predictive of criminal behavior. Beccaria’s ideas were developed during the Classical School; Lombroso’s theories were developed during the Positivist School of thought while Durkheim’s were developed through sociology idealisms. Discretion is a key part in the criminal justice process. Criminal justice agencies were clearly impacted by this decision. He firmly believed criminals control their own behavior and that punishment is necessary as a deterrent. The “The police are typically the first contact that young victims and delinquents have with the juvenile justice system. Reference this. level of training and orientation, which guide officials in making Procedural law establishes the methods used to enforce legal rights and obligations in civil lawsuits, criminal, and administrative proceedings. "The police are typically the first contact that young victims and delinquents have with the juvenile justice system. Judges are responsible for issuing warrants, supervising pretrial activity, presiding over hearings and trial, deciding guilt or innocence in some cases, and passing sentence on those convicted. to respond to most crime rests with State and local governments. protection is primarily a function of cities and towns. Procedural law is designed to ensure fairness in the application of the Due Process Clause of the Fourteenth Amendment. Points of view in this report are those of the authors and do not necessarily represent the official position or policies of the U.S. The victim, has the discretion to use self defense and to report the crime given the opportunity. 3rd Jul 2019 Discretion is defined as the power or right to decide or act according to one’s own judgment. Cesare Beccaria, Cesar Lombroso, and Emile Durkheim developed their own theories of criminological behavior during specific time periods. First, there needs to be far greater clarity about what fairness means in the criminal justice system and a … Discretion is "an authority conferred by law to act in certain conditions Beccaria’s ideas were developed during the Classical School; Lombroso’s theories were developed during the Positivist School of thought while Durkheim’s were developed through sociology idealisms. Lombroso was a strict positivist who explained criminological phenomena in quantitative terms that could be measured and ultimately controlled. January 15, 2020 I always find it interesting when people express their displeasure over some aspect of the U.S. criminal justice system – or its judicial system – that they think is inappropriate or unfair. He concluded that the majority of offenders, 90%, had committed crimes due to atavistic influences. Prosecutors may offer a variety of plea agreements including suspended sentences, probation, or substantial assistance. Beccaria believed the jury should be compromised of peers of the victim and of the accused. His Essay on Crimes and Punishment further distinguished between his two types of proof: perfect proof and imperfect proof. Most state legislatures are empowered by similar language from their state constitution. The application of discretion is evident throughout the criminal justice field. The responsibility Prosecutors exercise unfettered discretion, deciding who to charge with a crime, what charges to file, when to drop the charges, whether or not to plea bargain, and how to allocate prosecutorial resources. An effective and workable criminal justice system relies on police discretion. VAT Registration No: 842417633. Durkheim’s theory can be compared to today’s call for getting tough on crime. The fact that a person comes from a good family, is wealthy, or is a promising athlete does not diminish the seriousness of their offense and it certainly should not lessen the sentence. His Essay on Crimes and Punishment is claimed to have influenced the U.S. Constitution and Bill of Rights. or situations in accordance with an official's or an official agency's own In misdemeanor cases, judges are often the intermediate between the prosecutor and state attorney. Looking for a flexible role? general terms, criminal … Officers are obligated to follow state statute and agency policy and procedure when making these decisions. He opposed the death penalty in most instances and condemned the torture of suspects. Discretion is exercised throughout all levels of policing. Born from the Classical School of criminological though was Italian Cesare Beccaria who first published his Essay on Crimes and Punishment in 1764. In fact discretion can be found in all stages of the criminal justice system. Prosecutorial discretion is an important part of the criminal justice process because: it causes the system to move more slowly, but more fairly. Basically, they must decide -. His ideas were considered progressive in his time. The five rights made applicable to the states by means of the Due Process Clause of the Fourteenth Amendment afford Americans with the right to defend their given freedoms. Discretion of this sort is frequently vilified as the The limits of discretion vary from State to State and locality to considered judgment and conscience. Lombroso claimed criminaloids, or occasional criminals, were drawn into crime by environmental influences and only exhibited some degree of atavism. Following the decision to arrest, the case is forwarded to the prosecuting attorney for a filing decision. “The essence of monocracy, the rule of law, is limitation of the discretion of officials, and providing a process by which errors or abuse of discretion can be corrected.” (www.constitution.org). According to McGregor (Kleinig,1996), discretion can only be interpreted as those decisions that are made with lawful authority rather than decisions made for illegal reasons. It is a part of decisionmaking in all government As a recent development in criminal justice scholarship, researchers have begun to focus on the level of discretion that police officers have in enforcing the law. Administrative Law Durkheim’s values are promoted in today’s “getting tough on crimes” outcry. Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of LawTeacher.net. 1 Discretion is exercised throughout the government. Prof Evander. The role of discretion in the criminal justice system outlines what may form an aggravating or mitigating situation. Furthermore, correctional officers may use discretion when choosing whether and inmate should be part of a general prison population, or recommended for solitary confinement due to behavioral issues. It defines the procedures necessary to bring criminals to justice, starting with police investigation and continuing throughout the criminal proceedings. Criminal procedure, or procedural law, puts substantive criminal law in motion. Born from the Classical School of crimin… The Role of Discretion in the Criminal Justice System 257 discretion can enable judges, prosecutors, defense attorneys, and/or juries to implement sentencing policies in line with their own views, even if these policies conflict with formal law. A crime is classified as an act that violates the federal laws of America. Instructor: Melanie Norwood Melanie has taught several criminal justice courses, holds an MS in Sociology concentrating in Criminal Justice & is completing her Ph.D. in Criminology, Law & Justice. To export a reference to this article please select a referencing stye below: If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! The cultural and social impact of this bill has been a nationwide debate since its inception. Words are not perfect as numbers; they can often be interpreted to have more than one meaning. As one of the five rights afforded by the Due Process Clause, the prohibition of the taking of property without just compensation has had profound affects on our nation’s infrastructure. Discretion exists when courtroom actors (police officers, attorneys, judges) have the flexibility to choose an appropriate response to a situation. He believed the modern criminal was incapable of conforming to rules and expectations of society due to an undeveloped brain. Furthermore, the individuals within an institution must have lawful authority to make the decisions and must operate under the constraints acceptable to others within the organization or profession. This was in sharp contrast to New York v. Belton (1981) that allowed officers to search every vehicle incident to arrest. Punishment should be a deterrent imposed to prevent recidivism, not an act of retribution. And, nothing is perfect. Within the highest levels in the chain of command, the police discretion is used for example in deciding to target certain areas of crime with the use of initiatives or policies, possibly through the … *You can also browse our support articles here >. With the liberal movement, Beccaria’s theories may be sharply criticized by different groups that may consider certain criminal offenses to be less severe than another particular group’s opinion of the offense. For example, some State judges have wide discretion in the type of These boundaries include the U.S. and state constitutions, yet ambiguity in words of these laws often lead to discretion. Disclaimer: This work has been submitted by a law student. The rules themselves are usually the result of discretion by other actors in the criminal justice system, such as the legislature, which has created the criminal code for the jurisdiction. Prosecutorial Discretion As an elected or appointed official, the prosecutor is the most powerful official in the criminal justice system. For instance, unclear laws, nuisance behavior, ambiguity in state statutes, moral standards, and outdated laws may cause an officer to have an alternate resolution to the problem. Some examples of the Center's work at the intersection of race and discretion in the criminal legal system includes: amicus submission in Singleton v. Cannizzaro, which challenged the Orleans Parish District Attorney's Office practice of issuing fake subpoenas to crime victims and witnesses amicus submission in the Supreme Court case Edwards v. Durkheim argued that people behave according to social rules, customs and traditions that collectively form a particular society. Discretion in policing and the court system is a necessary and unavoidable facet of criminal justice work, yet it is still very controversial. They must decide guilt or innocence and issue sentencing based on judicial discretion or sentencing guidelines. Copyright © 2003 - 2020 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. Utilities, railroads, and highways formed our nation and were a direct result of the affirmation of the Fifth Amendment and eminent domain. In recent news, the Arizona Senate Bill 1070, has made it possible for law enforcement to stop any suspected illegal immigrants and to demand the proper registration documents. Top writers. Office of Justice Programs, U.S. Department of Justice. The effects of zoning regulations and eminent domain have been drastic and helped shape our society. Perhaps the most influential decision under the Fifth Amendment was Miranda v. Arizona (1966). Elements of the criminal justice system such as law enforcement officers, prosecuting attorneys, judges, correction officers and probation officers are faced with discretionary decision making throughout the criminal justice process. Disparity in the Criminal Justice System. That means that fundamental rights provided by the Bill of Rights were only guaranteed to those prosecuted in a federal court. 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