Discretion in Criminal Justice System



Discretion in Criminal Justice System

Using discretion through the exercise of judgement is a key component of professional practice throughout the criminal justice process, contrasting with more rule-bound, routinized elements of work with offenders. The central conundrum around discretion is that justice requires sufficient regulation and predictability to guard against arbitrariness, while also needing to allow for exceptions to the rule. Linking this to offender management includes the question of when to return an individual to court for breach of a community sentence. While a probation officer might use his or her discretion in an arbitrary or discriminatory way, a set of rules risks achieving bureaucratic sameness at the cost of ignoring relevant differences. Is it fairer, therefore, for officers to use their discretion to individualize decision-making, or to apply standardized rules to each and every case?

Probation officers have traditionally enjoyed a considerable degree of discretion. Until the Criminal Justice Act 1991, probation orders were imposed instead of a sentence, officers having authority bestowed upon them by the court to supervise probationers. How this was accomplished was left largely up to individual officers - resulting in a lack of consistency (of both approach and method) and the potential for discriminatory practice. The recent shift towards cognitive-behavioural approaches and the introduction of increasingly rigid National Standards in relation to the enforcement of orders were - in part - an attempt to address these concerns.

The exercise of discretion in prison can take three different forms: formal discretion, when options available are explicit within a given prison rule, order, or other procedural guideline; provisional discretion, when decisions are more variable but subject to review and reversal by a more senior official or internal adjudication body; and ultimate discretion, which arises when the decision-making process is not subject to internal monitoring or has only restricted external review. Although prison staff normally exercise either formal or provisional discretion, given the inadequate nature of penal accountability, they may have opportunities to exercise ultimate discretion.

The use of discretion has been justified on the grounds that decision-making is always highly subjective: the law is often ambiguous, too rigid or unclear, and its use is inevitable. Liebling and Price (2009: 115) argue that the inevitability of discretion has three sources:

The wording of rules themselves: words are vague, have no settled meaning or can be reinterpreted in given circumstances.

The situations to which the rules will apply: no two situations are the same, so the application of the rules requires interpretation within a situational context.

The organization's official purpose: there may be conflict or confusion between organizational rules and aims, and so a balance must be reached to avoid any contradictions.

Penologists have also defended discretion on the grounds that any further efforts to introduce the rule of law into prison would not only fail to eliminate situational discretionary powers but could also make the life of prisoners even more oppressive than it currently is.

In principle, a number of positive outcomes could be achieved through the exercise ...