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Discretion in the Criminal Justice System

      Discretion is arguably the most important tool in a criminal justice professional’s arsenal. Without it, we would be robots. Even the ...

Discretion in the Criminal Justice System

      Discretion is arguably the most important tool in a criminal justice professional’s arsenal. Without it, we would be robots. Even the most primitive of beings practices discretion in their communal dealings. Discretion is such a significant concept in the criminal justice system because of how many decisions are based off of it. If we were to remove discretion completely from the system, it would cease to function and cause any chance at reformation and evolution of the system to be cast aside entirely. 

Animals use discretion in their everyday lives when communicating with each other. If one chimpanzee out of the entire group does something wrong, such as hurt a baby chimp, the other members will choose how to deal with said chimpanzee. The same can be applied to a multitude of animals, including elephants and even crows. With this in mind, wouldn’t humans have evolved to use the same discretion when figuring out how to deal with one another?

Discretion hasn’t always been pretty. During the days when the Code of Hammurabi was being enacted, people killed criminals for next to nothing. Stealing often carried the same punishment as murder. While this sounds barbaric and lacking in any real thought process on how to deal with offenders, it was still their discretion. In North Korea, up to three generations of a family can be sentenced to a labor camp for one of them committing a crime. Again, this is still discretion in action, no matter how ruthless and cruel it sounds. 

Our current criminal justice system uses discretion in a different manner. Our system evolves and changes into something that is more congruent to our interpretation of fairness. This viewpoint is, unfortunately, subjective. During the early days of the United States, lynching was often commonplace and especially used for race issues. Thankfully, our system has evolved to a point that is beyond that, but criminal justice professionals use discretion every day when making decisions that could have potentially disastrous outcomes. 

Police officers often have to make split second decisions that could affect the lives of many. Some of these decisions aren’t always the right ones, or the fairest, but that is why they are afforded the discretion to act. As a community, we put the power in their hands to make these decisions. This can be either a bad thing, or a good thing, depending on how you view the situation. In 2018 there was fifty-five police officers killed in the line of duty. (FBI, 2019) During the same year, 992 people were killed by the police. (Washington Post, 2019) Should citizens start being allowed to use discretion when dealing with the police as well? 

Defense attorneys and prosecutors have to use a different type of discretion in their duties. A defense attorney has to decide whether to go for a plea deal, try to go to trial, or not see the case at all. Everyone has the right to an attorney, but non-public defenders have the luxury of choosing their cases. If they don’t want to represent a child-sex-offender, they don’t have to. Prosecutors, on the other hand, probably have the most leeway with regards to discretion in the entire system. 

Prosecutors can choose not to prosecute an offender at all. They can also choose what charges to pursue, and in some certain cases, the punishment for the charges. If someone is arrested for murder and it seems like the case is decently solid, the prosecutor can push for the death penalty if their state allows it. They can also choose to drop the case during a mistrial or to keep pursuing it. The lead district attorney can also shape the entire system that they’re in charge of by shaping policy and making decisions. This can alter the trajectory of the criminal justice system for their district. 

Kamala Harris exercised her discretion as a district attorney when she enacted a policy that would make the parents of truant kids have to serve jail time. While she claims that she never actually jailed anyone for it while district attorney, people still went to jail when she pushed the policy statewide after becoming the attorney general. (Janes, 2019, The Washington Post) Another example of a prosecutor using discretion would be in the case of Charles Manson and how they pushed for the death penalty even though he did not actually murder anyone himself. Unfortunately, the judge used his discretion as well and when Manson was convicted, received the death sentence. 

Other than prosecutors, judges have to use discretion in almost everything that they do. In fact, the main role of a judge is to watch over a trial and ensure everything is fair and that the two sides are acting impartially. That requires the utmost discretion as they are essentially the referee and have to make decisions constantly to protect the rights of the accused and the witnesses. Even judges at the supreme court level have to use discretion every single day. When they decide to hear a case and deliberate on it, they are using their discretion to interpret the constitution. 

Discretion is used at every stage of our criminal justice system. Police use it when deciding to arrest someone or what charges to book them with, defense attorneys use it when they decide to take on a case or attempt a plea deal, prosecutors use it when they decide to prosecute a case or to drop charges, and judges use it when they are overlooking a case or having to interpret the law. Without it, we would be a robotic society that makes all of its decisions based off of a checklist. Even animals use discretion, and the further we push the safe ways to use it properly, we become better as a society as a whole. 


FBI. (2019, May 6). FBI Releases 2018 Statistics on Law Enforcement Officers Killed in the Line of Duty. Retrieved from

Janes, C. (2019, June 8). Sen. Kamala Harris defends record as prosecutor but skips some details. Retrieved from The Washington Post

Washington Post. (2019, March 31). Fatal Force. Retrieved from The Washington Post

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