Discretion Essay

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Within the criminal justice system, the word discretion is most often used to refer to the authority and power to make decisions while drawing upon one’s own experience without immediate oversight but within the confines of the law and organizational/agency regulations. Each of the major components of the criminal justice system—legislature, law enforcement, courts, and corrections—contains substantial opportunity for decision makers to make critical decisions using their own discretion. Because many, if not most, of these decisions involve exerting power/control over the lives of others (e.g., offenders), these decisions must be done in an ethical, moral, just, and responsible manner.

Legislative Discretion

In the United States, citizens select local, state, and federal lawmakers through a democratic voting method. Ideally, individuals are elected to office who voters think represent their views and do so fairly and appropriately. Although many who study the criminal justice system view the police as the gatekeepers of the system, in actuality, elected legislators define the kinds of (mis) behaviors that initially bring people into the system and under its authority. Simply put, local, state, and federal legislators have the crucial responsibility to define particular behaviors as illegal (i.e., criminal) and punishable by certain sanctions; it is only after these legislative actions are passed that the police are then authorized to enforce these laws.

Legislatures are vested with a substantial amount of authority by the public to make fair and just decisions about what kinds of behaviors are defined as criminal. Elected officials are entrusted with defining as illegal those activities that pose significant harm or danger to people or property, and there is an expectation that they do so ethically— without infringing upon important rights (e.g., right to privacy, right to free speech). While many of the behaviors that legislatures define as criminal are those that threaten personal or public safety— for which there tends to be substantial agreement that these behaviors should be illegal (e.g., homicide, terrorist acts, kidnapping, robbery)—legislatures also have the power to criminalize behaviors that do not necessarily threaten lives or property. There is much less consensus over the danger/harm posed by these kinds of behaviors, often referred to as crimes against public morality/order. Because something is legal does not necessarily mean that it is also ethical/moral and conversely an illegal designation does not necessarily mean that a particular behavior is unethical/immoral. Hence, legislatures must take great care to approach this task ethically and fairly—making laws that protect people and property without infringing upon equally protected rights, views, and lifestyles.

Police Discretion

Once criminal statutes have been written and enacted by the legislature, the police are tasked with enforcing these laws, whatever they may be, in a fair, equal, and just manner. However, it is clear that police officers have a significant amount of discretion over how they actually go about enforcing laws—as there is typically no supervisor who rides around with officers and looks over their shoulders while they make enforcement-related decisions. The simplest, yet most important, discretionary decision police officers make is whether to arrest a person suspected of breaking the law. For example, when police pull over a driver they suspect has broken a law, they have the choice to arrest that person and bring them formally into the criminal justice system, issue a ticket/summons, or let them go with a verbal (or written) warning. Police officers are confronted with this situation over and over during the course of their work.

Police officers, as keepers of public trust and safety, are expected to use their discretionary power wisely and make ethical decisions that protect the public while fairly upholding the law. To be sure, this is not the only law enforcement-related decision in which police officers utilize their discretion. Other important discretionary decisions by police include (1) placing individuals under arrest, depriving them at least temporarily of their privacy and liberty to leave; (2) targeting individuals for surveillance, undercover, or other kinds of investigation; and (3) searching persons and seizing persons or things related to police investigations. As with elected legislators, police are expected to ethically utilize their legal authority to enforce the laws while making decisions that are often outside the view of the public and official oversight.

Judicial and Prosecutorial Discretion

Judges and attorneys in the criminal justice system are also provided substantial opportunity to use their discretion when pursuing and adjudicating criminal charges against individuals. Prosecuting attorneys and criminal court judges in particular are vested with significant authority to make decisions that affect the life, liberty, and freedom of those accused of committing a crime. Further, it must be noted that although many judges and prosecuting attorneys are elected by the public, some, instead, are appointed to these powerful positions.

Prosecutors have the grave responsibility of deciding who will be formally charged with breaking the law in addition to deciding which specific charges will be filed—this corresponds directly to which particular sanction/punishment can/will be imposed (as criminal statutes, written by the legislature, specify not only the behavior that is disallowed but also what consequences can follow if one is convicted). Thus, prosecutors are often referred to as the gatekeepers to the full authority of the criminal justice system. Additionally, prosecutors must pursue justice in society by making discretionary decisions regarding the following: (1) which charges to press versus which to drop, (2) which cases to plea bargain versus which to take to trial, and (3) how to prosecute a case in court. Prosecutors make critical, oftentimes life or death decisions, utilizing their vast discretionary power; they are, however, expected to make these crucial decisions ethically and within the confines of the law and agency policy.

Similarly, criminal court judges are acknowledged to hold immense authority and power to make discretionary decisions regarding the admissibility of evidence in criminal trials, acceptance of plea bargains, and convictions and sentencing/ punishing criminal offenders. To be sure, a variety of mechanisms—for example, legal precedent, appeals, sentencing guidelines, statutory restrictions—have been implemented over time (and more recently) in order to limit/constrain judicial discretion, particularly since allowing judges too much discretion has come under fire for resulting in unfair and disparate processing of and punishments imposed on similarly situated offenders. While judges are expected to oversee their courtrooms and make their legal decisions in an ethical, moral, and fair manner, it can be argued that there exists more opportunity for later scrutiny and, if necessary, reversal of judicial decisions that are determined to be unfair, unethical, or legally questionable than for other key criminal justice decision makers (i.e., through the use of the appellate process and other judicial review mechanisms).

Corrections Discretion

The correctional component of the criminal justice system is made up of prison and jail authorities, probation and parole officers, parole boards, and institutional/community treatment providers. Through the administration of the sanction(s) imposed by a judge, correctional decision makers of all kinds are provided with various opportunities to exercise discretion in their decisions, including (1) assignment to different types of correctional institutions and supervision levels; (2) imposing restrictions on convicted offenders (e.g., supervision conditions); (3) investigating offenders, writing pre and post-sentence investigation reports, and making recommendations regarding offenders’ suitability for and progress during correctional supervision/treatment; (4) the use of rewards (e.g., good time, early termination of supervision/release) and punishments (e.g., reducing good time credits, solitary confinement); and (5) granting or denying release and/or revocations. As with the other key criminal justice decision makers discussed above, correctional officials of all kinds are expected to make these kinds of discretionary decisions within the confines of the law, the rules/regulations of their respective agencies, and, of course, in ways that are consistent with ethical, fair, and just standards of behavior.

Discretion appears to be a necessary, and not always problematic, aspect of being a key criminal justice decision maker. It is equally important to note, however, that criminal justice decision makers share another fundamental characteristic in addition to discretionary power: each has the duty and responsibility to uphold the integrity of the law and societal rules of behavior (i.e., to perform their respective professional functions in a just, fair, and ethical manner).


  1. Albanese, Jay S. Professional Ethics in Criminal Justice: Being Ethical When No One Is Looking. 3rd ed. Upper Saddle River, NJ: Pearson/Prentice Hall, 2012.
  2. Banks, Cyndi. Criminal Justice Ethics: Theory and Practice. 3rd ed. Thousand Oaks, CA: Sage, 2012.
  3. Bushway, Shawn D. and Brian Forst. “Studying Discretion in the Processes That Generate Criminal Justice Sanctions.” Justice Quarterly, v.30/2 (2013).
  4. Pollock, Joycelyn M. Ethical Dilemmas and Decisions in Criminal Justice. 7th ed. Belmont, CA: Wadsworth/Cengage Learning, 2012.
  5. Williams, Christopher R., and Bruce A. Arrigo. Ethics, Crime, and Criminal Justice. 2nd ed. Upper Saddle River, NJ: Pearson/Prentice Hall,

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