Discretion in Criminal Justice Systems

Discretion is defined as the power or right to decide or act according to one’s own judgment. 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. The process begins with the decision to arrest by a law enforcement officer in the field. Once the case is forwarded to the prosecuting attorney, multifarious avenues of discretionary decisions are available to resolve a case.

Law enforcement officers start the discretionary process. 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. Officers must use discretion when deciding to enforce the law when certain situations arise. For instance, unclear laws, nuisance behavior, ambiguity in state statutes, moral standards, and outdated laws may cause an officer to have an alternate resolution to the problem. Although discretion is a key component to law enforcement, most discretionary decisions are based on misdemeanor or traffic enforcement. Officers are obligated to follow state statute and agency policy and procedure when making these decisions.

Following the decision to arrest, the case is forwarded to the prosecuting attorney for a filing decision. The prosecutor’s job is to seek justice, not conviction. Therefore, many cases may be issued a nolle prosequi, or downgraded to a lesser charge. For instance, possession of oxycodone is a felony in the State of Florida, yet a prosecutor may change the charge to possession of a prescription medication without a prescription, a misdemeanor. Prosecutors may offer a variety of plea agreements including suspended sentences, probation, or substantial assistance. 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. The defendant will often plea to the highest charge and maximum sentence in exchange for full cooperation with providing law enforcement with criminal information. The type of information and future cases brought to the State Attorney as a result of the investigation will determine if the substantial assistance requirement has been fulfilled.

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. 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. In misdemeanor cases, judges are often the intermediate between the prosecutor and state attorney. They must decide guilt or innocence and issue sentencing based on judicial discretion or sentencing guidelines.

Once a sentence has been imposed, correctional and probationary officers are responsible for overseeing and monitoring the recommended sentence. Probation officers may use discretion when imposing a violation or recommending early release. Parole officers face similar discretionary decisions when recommending or denying incarcerated defendants early release or violating there conditional release agreements. Correctional officers give recommendations to parole officers when a parole hearing arises. 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.

Discretion is a key part in the criminal justice process. 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. These boundaries include the U.S. and state constitutions, yet ambiguity in words of these laws often lead to discretion. Words are not perfect as numbers; they can often be interpreted to have more than one meaning. Therefore full enforcement of laws is impossible, making discretion a fundamental necessity of the criminal justice process.

Question #2 Beccaria, Lombroso, and Durkheim

Cesare Beccaria, Cesar Lombroso, and Emile Durkheim developed their own theories of criminological behavior during specific time periods. 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. Each of their theories resonate is current criminological studies and many of their thoughts can be compared to current issues.

Born from the Classical School of criminological though was Italian Cesare Beccaria who first published his Essay on Crimes and Punishment in 1764. The purpose of this publication was to communicate his observations on the laws and justice system of his time. Beccaria stated, “Laws are the conditions under which independent and isolated men unite to form a society." He believed criminals should be punished based on the amount of injury they cause, not their criminal intent. Punishment should be a deterrent imposed to prevent recidivism, not an act of retribution. Beccaria believed crime prevention was more important than revenge. The punishment should closely follow the commission of a crime so the offender connects the punishment with the wrongfulness of the crime. Beccaria believed the punishment should be severe enough to outweigh the personal benefits derived from committing the crime.

Beccaria further distinguished between three types of crimes: those that threaten state security, those that injure citizens and property, and those that run contrary to the social order. 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. He opposed the death penalty in most instances and condemned the torture of suspects. Beccaria believed torture would subject potentially weak suspects to incriminate themselves before they could be brought before a court of law. His Essay on Crimes and Punishment further distinguished between his two types of proof: perfect proof and imperfect proof. In “perfect proof" there was no possibility of innocence while some chance of innocence remained in imperfect proof. This theory closely resembles today’s proof beyond a reasonable doubt. Beccaria believed the jury should be compromised of peers of the victim and of the accused. His ideas were considered progressive in his time. 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. His Essay on Crimes and Punishment is claimed to have influenced the U.S. Constitution and Bill of Rights. He firmly believed criminals control their own behavior and that punishment is necessary as a deterrent.

Cesar Lombroso, of the Positivist School of criminological thought, was an Italian army prison physician who was best known for theories on criminology and its biological origins. Lombroso coined the term atavism and believed criminality was a result of primitive urges that survived the evolutionary process. 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. He believed the modern criminal was incapable of conforming to rules and expectations of society due to an undeveloped brain. Lombroso was a strict positivist who explained criminological phenomena in quantitative terms that could be measured and ultimately controlled. He conducted work using bodies of deceased criminals. Lombroso claimed to have found a variety of bodily features predictive of criminal behavior. He concluded that the majority of offenders, 90%, had committed crimes due to atavistic influences. Lombroso claimed criminaloids, or occasional criminals, were drawn into crime by environmental influences and only exhibited some degree of atavism. Lombroso’s theories have been challenged by several theorists including Charles Goring and Earnest Hooton.

Sociologist Emile Durkheim explored the idea of a community as a functional whole that translates the quality of life for its members. Durkheim argued that people behave according to social rules, customs and traditions that collectively form a particular society. He theorized that society formed a “conscience collective" and believed crimes violate that conscience collective to form a punitive reaction by the particular society. Durkheim viewed the function of punishment as a “passionate reaction" to crime. Cyndi Banks, author of Criminal Justice Ethics: Theory and Practice, states Durkheim’s focus was not on the effectiveness of punishment as a means to crime control, but as a way of retaining social solidarity through the affirmation of societal values. Durkheim’s values are promoted in today’s “getting tough on crimes" outcry.

Beccaria, Lombroso, and Durkheim each contributed to the field of criminology. Although Lombroso’s biological studies on atavism have been discredited by many in the field, perhaps enhanced scientific methods of studying brain behavior can attribute criminal behavior to certain physiological traits. 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. Durkheim’s theory can be compared to today’s call for getting tough on crime. Although their theories are well over 100 years old, they can be compared and contrasted to current criminological thought.

Question #3 New Emergent Criminal Justice Trend

Question #4 Substantive vs. Procedural Law

Substantive law is written or statutory law that defines rights and obligations of those subject to the law. Substantive law defines the legal pertinence between two parties such as person vs. person or person vs. state. Procedural law establishes the methods used to enforce legal rights and obligations in civil lawsuits, criminal, and administrative proceedings. Procedural law is designed to ensure fairness in the application of the Due Process Clause of the Fourteenth Amendment. Procedural law compromises the means by which substantive law is administered.

For instance, criminal law defines what constitutes a crime. As substantive law, criminal law establishes what conduct is prohibited and the type of punishment a violator would be subject. Criminal procedure, or procedural law, puts substantive criminal law in motion. It defines the procedures necessary to bring criminals to justice, starting with police investigation and continuing throughout the criminal proceedings. For example, procedural law incorporates the following questions: the conditions a person may be arrested, when the police can search, when does the accused have the chance to assert a defense, and how long before the accused is granted a trial. Substantive and procedural law and executed each day within the legal framework of our society. For instance, a vehicle fails to stop at a red light and a police officer initiates a traffic stop. Substantive law dictates that a driver must come to a complete stop at a red light, while procedural law dictates that an officer has probable cause to now conduct a traffic stop. A recent United States Supreme Court decision concerning procedural law drastically affected law enforcement procedures. Arizona v. Gant (2009) held that police may search a vehicle if it contains evidence of the offense of arrest. For instance, a person arrested for driving on a suspended license, may not have their vehicle subjected to a search. This was in sharp contrast to New York v. Belton (1981) that allowed officers to search every vehicle incident to arrest. Procedural law therefore drastically effects how substantive law is enforced.

Question #5 Five Rights/Due Process Clause of Fourteenth Amendment

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. States, however, are free to abolish grand juries and may use preliminary hearings as a substitute.

The five rights are derived from the Fifth Amendment and were therefore only applicable to the federal government. Prior to the adoption of the Fourteenth Amendment, the Bill of Rights Amendments were interpreted as restricting the authority of the national government. That means that fundamental rights provided by the Bill of Rights were only guaranteed to those prosecuted in a federal court. The defendant was not entitled to those protections in state court unless a statutory provision was in place. Therefore, the introduction of the Fourteenth Amendment required the states to afford due process whenever depriving a person of life, liberty, or property. Supreme Court Justice Black argued that the entire Bill of Rights is incorporated by the Fourteenth Amendment and therefore may be asserted by defendants in state and federal court.

Perhaps the most influential decision under the Fifth Amendment was Miranda v. Arizona (1966). The Miranda case was decided under the Fifth Amendment which is applicable to the states under the Fourteenth Amendment. Criminal justice agencies were clearly impacted by this decision. The Miranda decision made the reading of “Miranda Rights" a part of routine police procedure to ensure suspects were informed of their rights. This ensured suspects that once custodial questioning began, they were informed of their rights, and subsequently had the right to silence and counsel to protect themselves against self-incrimination. Furthermore, the Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny a person the equal protection of the law. 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. The cultural and social impact of this bill has been a nationwide debate since its inception. The provisions of the Fourteenth Amendment including the Due Process Clause will raise questions on Bill 1070’s affirmation.

The effects of zoning regulations and eminent domain have been drastic and helped shape our society. 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. Utilities, railroads, and highways formed our nation and were a direct result of the affirmation of the Fifth Amendment and eminent domain. 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.