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 -
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."