How the Criminal Justice System Works
How Discretion Is Exercised in the Criminal Justice System  

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Very few crimes are under exclusive Federal jurisdiction. The responsibility to respond to most crime rests with State and local governments. Police protection is primarily a function of cities and towns. Corrections is primarily a function of State governments. Most justice personnel are employed at the local level.

Discretion is "an authority conferred by law to act in certain conditions or situations in accordance with an official's or an official agency's own considered judgment and conscience."1 Discretion is exercised throughout the government. It is a part of decisionmaking in all government systems from mental health to education, as well as criminal justice. The limits of discretion vary from jurisdiction to jurisdiction.

Concerning crime and justice, legislative bodies have recognized that they cannot anticipate the range of circumstances surrounding each crime, anticipate local mores, and enact laws that clearly encompass all conduct that is criminal and all that is not.2 Therefore, persons charged with the day-to-day response to crime are expected to exercise their own judgment within limits set by law. Basically, they must decide -

  • whether to take action
  • where the situation fits in the scheme of law, rules, and precedent
  • which official response is appropriate.3

To ensure that discretion is exercised responsibly, government authority is often delegated to professionals. Professionalism requires a minimum level of training and orientation, which guide officials in making decisions. The professionalism of policing is due largely to the desire to ensure the proper exercise of police discretion.

The limits of discretion vary from State to State and locality to locality. For example, some State judges have wide discretion in the type of sentence they may impose. In recent years other States have sought to limit the judges discretion in sentencing by passing mandatory sentencing laws that require prison sentences for certain offenses.


1 Roscoe Pound, "Discretion, dispensation and mitigation: The problem of the individual special case," New York University Law Review (1960) 35:925, 926.

2 Wayne R. LaFave, Arrest: The decision to take a suspect into custody (Boston: Little, Brown & Co., 1964), p. 63-184.

3 Memorandum of June 21, 1977, from Mark Moore to James Vorenberg, "Some abstract notes on the issue of discretion."

Who exercises discretion?
These criminal justice officials... must often decide whether or not or how to ...

Police -Enforce specific laws
-Investigate specific crimes
-Search people, vicinities, buildings
-Arrest or detain people
Prosecutors -File charges or petitions for adjudication
-Seek indictments
-Drop cases
-Reduce charges
Judges or magistrates -Set bail or conditions for release
-Accept pleas
-Determine delinquency
-Dismiss charges
-Impose sentence
-Revoke probation
Correctional officials -Assign to type of correctional facility
-Award privileges
-Punish for disciplinary infractions
Paroling authorities Determine date and conditions of parole
Revoke parole

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