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Discretion has the meaning of acting on one's own authority and judgment. In law, discretion as to legal rulings, such as whether evidence is excluded at a trial, may be exercised by a judge. Some view discretion negatively, while some view it positively. Discretion exists at all levels of law enforcement and in many types of front-line bureaucrats. Discretion has been called "the Art of suiting the action to particular circumstances" (Lord Scarman). Those in a position of power are most often able to exercise discretion as to how they will apply or exercise that power. The ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed.[1]

In law

Prosecutor at work

In the legal system, discretion is often defined as the ability of a judge to choose where, how and with what severity to sentence a person who has been convicted. A person chooses to utilize his or her options and decides which to use, whether this is a police officer arresting a person on the street (criminal) or evicting someone from an apartment (civil) or anywhere in between.[2]

Discretion can be found in all stages of the criminal justice system.[2]

Prosecutors have discretionary power in the criminal justice process. They have the ability to initiate and terminate all criminal prosecutions. They have to use discretion to weigh the rights of the accused, the feelings of the victim, and the capacity of prisons when determining a proper punishment. Prosecutors control plea bargains and thus have possibly the most discretion-based role in the criminal justice process. If they believe a person deserves to be in prison, they will pursue that route, knowing that the prisons are very full and would then lead to a person being released early without serving his full sentence.[3]

"An abuse of discretion is a failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedent and settled judicial custom."[4] On appeal of an exercise of judicial discretion, "abuse of discretion" is a standard of review requiring the appellate court to find that the lower court's decision would "shock the conscience" of a reasonable person in order to reverse the decision below.

References

  1. ↑ See Websters Third New International Dictionary (unabridged).
  2. 1 2 Thorburn, Malcolm (Apr 2008). "Justifications, Powers, and Authority". Yale Law Journal. 117 (6): 1070–1130. doi:10.2307/20454675. hdl:1807/78269. JSTOR 20454675.
  3. ↑ MISNER, RL. RECASTING PROSECUTORIAL DISCRETION. Journal of Criminal Law & Criminology. 86, 3, 717, 1996. ISSN 0091-4169.
  4. ↑ "What is the definition of abuse of discretion? | Answers Encyclopedia: Facts and answers verified with sources like Encyclopedia.com". Archived from the original on 2013-07-18. Retrieved 2013-12-05.
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