What is Legal Discretion?
To understand the power of judges to convict and sentence, you must first understand legal discretion. What is it? It is an area where law is not concrete. That allows judges and public officials the ability to use judgment in making a decision. We see this all the time in the judicial system. Sometimes, when you are stopped for DUI, you are arrested even though you were really safe to drive and shouldn’t get charged. But other times, you are not arrested even thought you should be. How does that work? Well the police officer has discretion to make decisions as to when to charge DUI and when not to. So do the police officers who are out there investigating if the driver is driving drunk or not. The law says "shall arrest" for the offense of DUI but it does not require an arrest. The law is not certain about that. That area in between is what we refer to as legal discretion. Similarly, there are areas of the law where the judges must decide issues of fact. This is another example of areas where law gives the judge discretion. For example, in a real estate dispute, there could be a disagreement over the value of a house between the buyer and the seller. This will require the fact finding of a judge who must decide the valuations of the house by either party. In this case, the judge will have discretion on certain issues. The idea is that there are always areas in between concrete definitions of what the law says . Sometimes these areas are fuzzy and other times they are gray. One area where this comes up constantly is in criminal cases. Often, the law does not give clear instructions about what a judge can do. The legislature often sets a minimum punishment of probation for an offense, and a maximum of life imprisonment. Somewhere in between is the discretion of the judge. For example, in a case where a robbery was committed by a teenager, the judge has a lot of discretion in what kind of punishment to hand down. The judge can sentence him to probation or even home detention. The court should set out the rationale for the ruling and some of this is just common sense. A 14 year old kid with no prior record should not be sentenced to prison for 10 years just because he and his friend wanted to steal a phone and pointed a water gun at someone (see a variety of 7-11 robberies from this summer. On the other hand, judges are also given a lot of discretion in other areas where it seems really unreasonable. Last year, a judge sentenced a 3rd time offender with a prior conviction for illegal entry and a prior conviction for DUI to jail rather than jail for 90 days. That extra 10 days made the difference and the judge set out for us exactly what the law said and what the discretion of the court was based on that law. This was a judge in the DC Superior Court which is the court that handles misdemeanors in the District of Columbia.
The Historical Evolution of Legal Discretion
One of the earliest uses of the term ‘discretion’ can be traced to Sir Edward Coke, the English barrister and judge of the early 17th Century. He wrote that "The discretion of a Judge is the spectable of our law, How far it may go, is unknown, but this is certain, That a Judge ought not to be a man partial in his own cause". Discretion remains important to all aspects of English law. It is so vital that the ability for its exercise has been known to be deemed sufficient, by itself, to create a public law right. To further illustrate the general significance of discretion in English law, we can turn to what the Supreme Court has described as "the values reflected" in the imposition of a duty of care in Tort Law. In the case of Griffiths v CCH Box and Container Service Ltd 1976, which is seen as leading case law on the "harmful reliance approach" which was recognised as relevant when imposing liability, Lord Denning said: "[w]e do not think that there has been such reliance here that a duty should be imposed . . . [T]o impose a public duty here . . . would be too burdensome a responsibility for the [Defendant], because it would at once become a gamekeeper as well as a poacher [of the law]. For the common law will not hold a man liable for the negligent exercise of his discretion. That would involve turning the law into a sort of gamekeeper for the law, in a way the judges have always abhorred. That is why the law has very properly refused to impose a duty of care on a person who has any discretion of the kind under consideration."
As the quote above demonstrates, English common law has not always been this way and there have even been periods when it has been restricted or expanded by statute. When the Coronation cases were decided by the House of Lords in 1953, their Lordships had to interpret the law as it had developed. Their Lordships determination was that the Board had no obligation to provide accommodation for spectators who had already bought tickets. This, regardless of a lack of provisions for their accommodation. This decision was overturned by the Implied Terms In Contracts Act (1974) (UK), with section 2(1) stating that "A contract to which this section applies shall, unless a contrary intention appears, be treated as including such provisions as are necessary to give effect to that purpose". Therefore overriding the general sentiment that discretion cannot be statutory to make the decision of judges legally binding rather than discretionary. Examining the nature of English law over time, shows how the concept of discretion has moved in and out of law, sometimes requiring a statutory basis, and other times, not.
Real-Life Applications of Legal Discretion
The legal system is replete with situations where discretion is regularly employed. Take, for example, a plea deal. The prosecution has the discretion to accept or deny such offers, and if it is accepted, that will greatly alter any potential sentence. If the prosecution is unwilling to disclose evidence related to a plea deal, the judge may have the discretion to decide the jury will not hear such evidence. Furthermore, the judge has the discretion to allow or deny the plea deal when a defendant fails to uphold the agreement. Prosecutors are perfectly capable of exercising discretion over whether or not they will pursue criminal charges against a particular suspect.
Judges likewise have almost boundless discretion when it comes to the sentencing phase of a trial. This is why having an experienced defense attorney by your side is so important. For example, someone convicted of murder or manslaughter may spend as little as 15 years in prison, or as long as a number of decades. While violent crimes generally carry longer sentences than non-violent ones, judges still have discretion and can take special circumstances into account. They can choose to impose a lesser sentence if they feel it is appropriate, so long as those decisions come with a valid and legally sound rationale. Sentencing isn’t always black and white, and there is plenty of room for discretion.
The police are also required to use discretion. For example, they have discretion when it comes to traffic stops, and whether or not to issue tickets or make arrests. Depending on the situation, the penalty for minor traffic violations could be raised or lowered depending on whether the officer thinks the violation was negligent or unintentional. If circumstances indicate a serious safety threat to other drivers, the officer has no choice but to issue a ticket. It is entirely at the officer’s discretion whether or not to arrest a person under suspicion of DUI. While they may be required to conduct sobriety tests, they still decide whether or not the measured levels are indicative enough to warrant an arrest. Police officers working in communities with a reputation for gang violence are trained to exercise their discretion and make more arrests in those areas for certain crimes.
These are just a few examples of the countless ways discretion plays a role within the legal system.
Advantages and Disadvantages of Legal Discretion
The primary benefit of legal discretion is one of flexibility and adaptability. The law cannot possibly account for every situation that may arise in practice. Thus some grant of authority to persons of experience and sound judgment has been recognized as necessary. Precedent and customary practice will ordinarily have some effect even when not explicitly provided for. On the other hand, the greatest critics of the discretionary powers of judges and public officials have been its practitioners, who know better than any others the disadvantages and dangers inherent in its exercise. Thus, however easily the power of discretion may be supported on theoretical grounds, there are potential pitfalls for its abuse that give pause.
Discretion is subject to abuse. To get beyond the generalities, one must focus on the nature and scope of a particular grant of discretion . Since no presumption attaches to grants of discretion, courts should closely examine the particular grant of discretion. The danger of inconsistency and arbitrariness inheres in the exercise of discretionary authority as it relates to individuals. A second essential to the exercise of discretion is that it be exercised in a manner consistent with sound judgment and reasonable discretion. There are at least two other conditions that govern the exercise of discretion. First, discretion must be reasonably and impartially exercised and cannot be arbitrary or capricious, an exercise of personal whim rather than judgment. Second, the exercise of discretion should be in a manner properly consistent with the object, purpose and scope of the legislative grant of authority.
Variations in Legal Discretion Among Jurisdictions
Legal discretion does not only vary within a legal system; it may also vary across legal systems. A common point of departure is that most Anglo-American legal systems, which generally belong to the common law tradition, offer judges a significant margin of discretion. Invariably, there are limits to that discretion: in some cases, judicial discretion may be curbed by clear statutory provisions that set out what should happen in a certain case (e.g. limiting maximum or minimum penalties, or making a certain sanction compulsory in certain circumstances). In other cases, where it would be inappropriate to place the matter in the hands of the legislature (such as grant of bail), the legislature has chosen to limit the judge’s discretion by providing clear guidelines within which a particular decision may be taken. Within the limits of the Constitution, the judge is free to use his or her judicial discretion properly by taking into account the relevant facts of each case. The exercise of discretion must comply with the Constitutional requirement of reasonableness. This means that under and through the Constitution, the judiciary is afforded the necessary (and proper) level of discretion. The position is however again different in civil law jurisdictions, where discretion is granted only in the final instance and normally only in the interest of justice. Some foreign courts have two hierarchies of appeals: the ‘ordinary’ and the ‘extraordinary’ appeal. The first is unimpeded and the second is only granted where there are serious questions of law, as opposed to questions of fact. In countries such as the Netherlands, the idea is not to have an advanced jurisprudence as in the common law tradition. The reasoning is that when a specific dispute emerges, the civil law judge will decide on the facts of that particular case. If the matter is elevated to an appeals court, it will be examined again on the basis of the specifics of the facts. The final review is only on a question of law: if the matter is unclear as to the application of the law, the common law idea is that the judge’s decision needs to be checked by a superior court. The civil law’s limited system of checks and balances to ensure sound legal decisions is translated in a very limited appeal mechanism.
The Prospective Landscape of Legal Discretion
The future of legal discretion is a topic of ongoing debate and interest. As technological advancements such as artificial intelligence continue to evolve, the legal community is left to wonder whether these technologies can enhance or limit legal discretion. There are those who argue that these tools can serve as valuable resources for legal professionals, providing them with historical data and predictive analytics that can inform decisions. Others warn, however, that these tools can also lead to overreliance and limits to discretion.
One potential development in the future of legal discretion is the use of AI in the creation of sentencing guidelines. As we have seen in cases such as federal judge Robert M. Takasugi in 1989, who used a formula based on zip codes, the possibility exists that judges could use algorithms to make sentencing decisions. While this could be seen as providing greater objectivity to the process, it also raises concerns about race and class bias inherent in the data used to create the algorithms . As of now, the use of algorithms to inform sentencing decisions has been used sparingly, and it remains to be seen what effect they will have on legal discretion in the future.
It is also worth considering the role of public opinion in debates about the future of legal discretion. On the one hand, as society becomes increasingly aware of issues such as racial discrimination and social justice, there may be more of an acceptance of discretion that takes these factors into account. On the other hand, public outcry and political pressure can lead to judges and lawmakers feeling the need to toe the line and avoid using discretion. It is clear that debates about legal discretion are likely to continue to occupy a central place in legal and public discourse in the coming years.
Legal discretion has long been an important component of the legal system. Its future is subject to change as technological advancements and public attitudes continue to evolve.