A Theory of Discretion in Criminal Justice Systems

Sara Steen, University of Colorado at Boulder

Criminologists have long demonstrated interest in the factors influencing criminal justice decisions. Two of these issues central to this area of research are the extent to which individual actors exercise discretion (individual judgment) in decision-making, and the nature of that discretion. The majority of researchers interested in these issues have looked at discretion at one decision-making point (usually sentencing), trying to explain variations in decisions across individual offenders, decision-makers, and/or jurisdictions. I argue in this paper that it is critical at this particular juncture (in both the world of public policy and the academic world of criminology) to develop a theory that looks at the exercise of discretion across decision-making stages, and includes arguments about how changes in discretionary behavior at one stage will affect decision-making at other stages. The theory that I begin to develop in this paper does this, and also identifies both common factors affecting the availability and the exercise of discretion at different stages, and also organizational factors that explain differences in the nature of discretion at particular stages.

Understanding the distribution and uses of discretion in criminal justice systems is important for two reasons. First, the way decision-makers exercise discretion has a significant impact on public perceptions about both the fairness and the effectiveness of the criminal justice system. Because discretionary power by definition allows individuals to exercise judgment in reacing decisions, decision-makers in the same position may consider different factors, resulting in different outcomes for similar cases. This raises concerns about fairness and equity, which, if unaddressed, can lead to public perceptions of systemic discrimination. A related concern arises from the possibility that, granted discretionary power, actors in the criminal justice system will make decisions that do not conform with the intent of policies or decisions made by earlier actors. For example, a judge may sentence an offender to a term shorter than that recommended by statutory guidelines (if the guidelines are not mandatory), or parole board may release an offender long before he or she has completed the sentence imposed by the judge. Such decisions are likely to undermine public confidence in the ability of the criminal justice system to effectively punish offenders.

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Updated 05/20/2006