28 Jul 2022


Discretion in Criminal Justice

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Academic level: College

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There is conflict in determining the significance of employing discretion in criminal justice. This is because it does not seem to have any limit to the extent to which it can be applied. Many individuals feel that some officials may be power hungry and politically affiliated so they may not be able to complete their job with complete fairness. It is important, even with the freedom that an office is given, that rules should stand firm in the middle and ensure that no official attempts to overstep their mandate and affect a decision, small or large in stature. 

Discretion is the leeway that officials in the Criminal Justice system are given so as to be able to exact their role in the society. Even the most comprehensive and complete rules and regulations give an opening for the discretion of the official involved. This discretion will give the provisions for these government officials to contradict and act out of their own calculation and reasoning. There are some instances where the law has very strict and stringent rules against a particular crime but the chief prosecutor uses his or her prosecutional discretion to decide otherwise on particular rulings. There are some instances where the sentences may be increased or in other cases where the sentence is significantly reduced. This comes as a result of mercy rulings or plea bargains that may be used to come up with an understanding between the chief prosecutor and the defendant. 

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Police Discretion 

Police discretion is the liberty of choices and judgment that is given to officers of the law when faced with certain issues and circumstances. This freedom that is given to the officers is governed by certain policies as different police officers would act differently when faced with various situations. This discretion is mostly used when they are out in the field- patrolling or at traffic stops. These officers base their decisions on the situations that surround them at that moment. Factors such as the safety of the officer need to be taken into consideration. Since officers are of different cultures, race, attitudes, there is no absolute on unshakable right when tasked to deal issues in the field. Therefore, they are given some leeway or flexibility in dealing with circumstances on the fly. There would instances where the police would see the need to arrest an individual or sound a warning and let the perpetrator go free. 

There are organizational, situational and environmental factors that affect police discretion. The organizational factors include policies, centralization, protocols and the dimensions of policing. These factors are brought about by the structure of the police administration for a particular area. The environmental activities that affect police service are socio-demographic facets , the nature of the community, crime rate in the area, the relation between the police and the people living in the community. These prove to be vital as they affect how the police treat suspects and the intel that the officers may receive. A positive relationship between the officers and the community fosters a safer living space for a thriving community. The circumstantial or situational factors include: the age or gender of the perpetrator . These factors affect the force that may be used to arrest or deal with the particular issue at hand. The severity or serious of the crime plays a vital role in determining how a police officer handles a suspect. The role and state of the victim is a vital issue that may affect how a police officer apprehends and questions him/her in relation to a particular case. Weapon involvement is an important aspect that will permit the officer to use force or a firearm to contain the threat. 

Discretion at the office of the Assistant District Attorney 

The Assistant District Attorney is given the discretion to deal with circumstantial issues in the day-to-day work. This prosecutorial discretion helps further the wheels of justice in various important ways. These prosecutors are given the responsibility to decide what they consider fair, right and just in the cases that bring at a particular moment in time. These decisions are not reviewable as they are given the mantle to decide on this. On the other side of the coin, this responsibility also provides an opportunity to show mercy and leniency in a justice system that is famed for being brutal and unforgiving. The harsh and unbendable laws can be ignored or lined so as to show leniency in some of the archaic criminal laws. 

The concept of discretion is a deep tradition in the laws in the United States in America. They assume that the discretion given by prosecutors is unavoidable. The degree to which these laws are implemented is controversial.This recognition is linked to the adversarial system of justice in the United States. The courts are initially given the mandate to settle disputes, in which the court judges have a more passive role. Most people have the perception that the judges are meant to determine truth, probe cases and ensure justice. This view is skewed as there are some situations that do not present a situation of absolute truth. In some instances, there could be an issue of a crime committed under duress or other external conditions. These situations need an ADA who is skilled and well sung with these type of situations that may need to be handled with a lot of care. The office is given the freedom to determine how to settle the issue, the presence of a punishment and its severity (Neubauer & Fradella, 2015). 

The district attorney, therefore, plays a vital role in justice administration in the United States. The district attorney takes the role of state lawyer. The client, therefore, remains the society and not the police or the actual victim of the crime or brutality. These cases are seen as a dispute between the criminal in question and the government. This office is also tasked with the responsibility of choosing or selecting the amount or extent of the punishment that the perpetrator is to receive. This mandate and responsibility are given to this office with the faith that it will be used to ensure a more human approach to the brutal and immovable law. This is important as there will be some situations that would require a more severe punishment or those circumstances that would require a pinch of mercy. The ADA is therefore given the freedom to decide on making this decision on how they see fit. The attorney must and should always remain neutral in all political matters (Neubauer & Fradella, 2015). 

There are instances of the plea bargain. That is, the attorney and the defendant agree to settle a dispute in a more amicable manner. The prosecutor may decide to drop some potential sanctions or charges in agreement for the defendant not to dispute some segments. In most cases, the parties agree on the final resolution and this adequately reduces the time and government resources in a court case. 

Community Corrections Discretion 

The moment a sentence has been imposed, it is the responsibility of the probationary and the correctional officers to monitor and oversee the sentence that was recommended. These officers are given the freedom to impose a contravention or propose early release. Parole officers are also given the freedom to advocate or deny imprisoned defendant's early release. The officers of a correctional facility give any propositions to the parole officers during hearings. The officers of the correctional facility are also tasked with the responsibility of determining whether the inmate should be placed together with the general inmate population or in a different area of confinement (Neubauer & Fradella, 2015). This is used in the determination of the safety and security of the individual inmate or that of other inmates. This could also arise from behavioral issues that come up during the stay of the inmate. This freedom is given to the correctional officers and it comes with the huge responsibility of ensuring that all the inmates are not exposed to any unnecessary danger. 

These issues of discretion are not black and white. This particular section of the judicial system is tainted with issues of racial profiling that threaten to murk the otherwise considered clear and candid waters of the justice system. They try to act with the broad structures of the law that try to toe the line of legality. These boundaries are the State and National constitutions that may bring a difference in the kind and severity of the punishments, rules, and regulations of the court in question (Neubauer & Fradella, 2015). 

This issue is ever present in all departments in the judicial service system. This is why discretion comes in. It plays an important role in the servicing of these laws and ensuring fairness to all that have to go through this system. Enforcement of the law to its fullest is impossible in a society due to the dynamism of the law. Discretion brings in an aspect of human touch that will greatly help the society get rid of the inhuman regulations that murk the law. Discretion is key in the administration of the law in the country and I have learned that in the justice system there is no absolute right or wrong. Different circumstances warrant different reactions; to further the application of the law appropriately. 

Experiences and Lessons Learnt 

Police Patrol Officer 

The process of discretion is kicked off by the law enforcement officers on the ground. These officers engage the community with the intent of gaining information about prospective crimes, ensuring the safety of the public and apprehending any perpetrators that may be hounding the community. I had the opportunity to speak to two different patrol officers about their job description and how the utilize during their day-to-day police work. I managed to find out that these police officers had contrasting views on how to handle the public as the police. 

One police officer believed in good community relations. He believed that it was important that the community is in constant communication with law enforcement. He believed that this was to be of advantage to both the police officers and the community as a whole. This would mean that the police would be able to gain important intel and information on suspects. Community policing is efficient as the individuals are able to “purge” the bad seed that is the criminal and live a peaceful life. The police patrol officers will also tend to be lenient to some of the individuals in the community if they communicate with the police(Neubauer & Fradella, 2015) . 

There was an instance of a teenager, say, John Doe, who was at a comic book store with a friend viewing the merchandise. When they were leaving the security alarm sounded and he was found with merchandise that he had not paid for. He admitted that he was wrong for having the comic book on his person but he insisted that he forgot to put it back on the shelf and had no intention of stealing it. The officer was inclined to be lenient because this happened in a police-friendly neighborhood and the owner of the store decided against pressing charges after discussion with the police. This would not ordinarily happen in any other situation with a different and more aggressive police officer in a different environment or circumstance. 

Assistant District Attorney 

In the circumstance where an individual has been arrested, the next stage is the prosecuting attorney. The main job of this prosecutor is not to seek conviction but to seek justice. Hence, most cases that are brought to the office of the prosecutor are often downgraded to a much lesser charge. A good example is in some states possession of oxycodone is considered a felony. Some prosecutors may decide to reduce the charge to possession of prescription medication without a formal prescription document from the doctor. This is just a misdemeanor and may not even end up in jail time. 

Prosecutors also offer many variants of plea agreements that would include:probation or suspended sentences. Some states have a plea agreement in which the perpetrator provides criminal information for a reduced sentence. In this case, the defendant will plea to the maximum sentence. In exchange, the law enforcement gets important criminal information that will assist the investigation in another case. If this information is accurate and leads to the arrest of other criminals, then the sentence can be reduced. 

Once this has been agreed between the two attorneys, then the judge of the court is able to use his won discretion to determine whether the proposition is just. If it is recommended, then it is made the law and the details of this agreement are to be implemented as soon as possible. 

Community Correctional Officer 

These officers are responsible for ensuring that the sentence that was recommended by the court is fully executed. These officers are given the freedom to impose a contravention or propose early release. Parole officers are also given the freedom to advocate or deny imprisoned defendant's early release. This is determined by their behavior during this important period. The officers of a correctional facility give any propositions to the parole officers during hearings. The officers of the correctional facility are also tasked with the responsibility of determining whether the inmate should be placed together with the general inmate population or in a different area of confinement (Neubauer & Fradella, 2015). 

The individuals who are under the guide of a parole officer are required to be on their best behavior. The are not allowed to consume drugs of any kind or involve themselves in criminal activities. The officer is given the discretion to monitor and evaluate whether the individual is fit to go back into to the society. This responsibility is huge and it is important for the officer to be level headed and able to make the best decision for the society. 

Other lessons 

There are disparities that may come in when dealing with discretion. Issues such as race and social classes are ripe and may bring about huge differences in the criminal justice system. This would bring in an implication that particular rulings were made in a certain way because of the race or background of an individual. The racial disparity, for instance , is real in the justice system. This would mean that minority races in the United States are disadvantages when they seek for the justice or less severe rulings on their part. A huge problem may come up when a trend can be noted and extrapolated to show that minority groups do not get favorable rulings in general (Neubauer & Fradella, 2015) . 

There are some situations where one has been wrongfully jailed due to the unnecessary discretion of a criminal justice officer. Such situations are common and bring to question whether this discretion is the best idea for the community. It is important to note that discretion is not the absolute truth and should not be taken as such. Therefore, there should also be fluid mechanisms of reviewing cases that may have been fraudulently sentenced. There should also be a system of policies that cab be put up to support this type of venture. 


Neubauer, D. W., & Fradella, H. F. (2015).  America's courts and the criminal justice system . Cengage Learning. 

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