Diversion Discretion And Legitimacy Notes

CSPS Supervision 2 – Diversion, discretion and legitimacy

Exercising discretion: Decision-making in the criminal justice system and beyond – Gelsthorpe and Padfield

• “Discretion is one of the most contentious concepts in criminal justice and related circles because it is so important yet so difficult to define.”

• “The concept of discretion is critical to the meaning of justice”.

The origins of discretion

• From Plato onwards, discretion has tended to be equated with what remains after one has elucidated what the legislation or law should be.

• However precise the law, theory or policy might be, there is always a certain flexibility, ambiguity or discretion in how it is applied in practice.

Defining discretion

• According to dictionary, discretion involves a liberty or power of deciding according to one’s own judgement or discernment.

• At its simplest, discretion refers to the freedom, power, authority, decision or leeway of an official, organisation or individual to decide, discern or determine to make a judgment, choice or decision, about alternative courses of action or inaction.

• Baumgartner suggested that discretion is often a myth.

• Discretion takes on a different mantle at different points in the system.

  • In early gate-keeping stages it is sometimes referred to as ‘diversion’.

  • But not all diversion is discretionary.

Distinguishing discretion from discrimination and disparity

• Discrimination frequently tied to concept of prejudice – ideas that identify particular groups or individuals as ‘inferior’ or ‘difficult’.

• Disparity most clearly associated with sentencing and the practice of giving different sentences for similar offences.

  • Also has wider relevance in terms of offenders and victims being treated differently or unequally throughout the criminal justice system when their circumstances are similar.

How can we evaluate discretion?

• Whereas disparity concerns the consistency with which criteria are applied to cases, and unlawful discrimination commonly refers to the use of illegitimate criteria, both involve the exercise of discretion.

  • Suggests that discretion can work in a negative way where it leads to unwarranted disparity and discrimination.

• But decision-makers may discriminate in a positive way too.

• “To be fair, law and policy must be both certain and flexible”.

• Unfettered powers of discretion can be applied in positive ways.

  • Need to maintain a balance between uniformity and individualisation of treatment.

• Nigel Walker (1999) notes that we must recognise mercy as something different from justified mitigation.

  • Notes that CPS may encompass ‘mercy’ within its decision not to prosecute within its conveniently ambiguous phrase ‘not in the public interest’.

• Discretion is a force for ill when it leads to unjustifiable decisions (negative discrimination) and inconsistency (disparity), but it can be a good thing in that it provides a mechanism to show mercy which, even if defying precise definition, many would recognise as being necessary to the conception and delivery of justice.

  • Allows for justice to become ‘humane’.

Socio-logical research on discretion

• Socio-logical explorations have identified a number of variables that may influence the exercise of discretion in criminal justice systems:

  • Process

  • Environment

  • Context

  • Illicit considerations

• Process – there are numerous opportunities to divert cases based on legal or practical criteria.

• Exercise of discretion by officials takes place within a particular environment or cultural context, both in terms of the large social and political system and in terms of local factors.

  • These environmental factors often described as the ‘local community’.

  • Bottomley: ‘decision makers are directly and indirectly influenced by a variety of ‘community’ factors’.

  • The environment or community serves to constrain the exercise of police and criminal justice agency discretion by reporting or not reporting crimes, by participating in criminal justice process as complainants or jurors, by expressing views through specific interest groups and by expressing views through the media.

• Studies on occupational roles elucidate the working philosophies of different professional groups within the criminal justice system.

• Regarding the police, dominant themes: need to remain in control in encounters with the public, search for excitement in an otherwise routine existence and administrative biases.

• Exercise of discretion necessarily involves a power to decide.

  • Considerations of misuse of power.

• Davis (1969) notes that while discretionary power is necessary, the ‘huge quantities of unnecessary discretionary power’ should be cut back to ensure justice for individuals – focus here on US administrative systems.

  • More elaborate administrative rule-making may be a key to justice, if accompanies by better structuring and checking of discretionary power.

  • Highlights ‘openness’ as being key to fair exercise of discretion.

  • But Baldwin and Hawkins counter that more control does not necessarily mean better control.

• Bottomley (1973) acknowledges that conflicts and ambiguities are inherent in the system.

  • Suggests that not only is discretion indispensable for justice, but that it is right for us to question the various official claims about the principles which are intended to inform the process of decision-making.

• Dean Galligan (1986) believes that discretion can be kept to a minimum by regulating its exercise through fixed and certain rules.

• Hart (1961) argues that where rules conflict, a judge must use his discretion, his own conception of what is ‘just’ to ‘invent’ the law.

  • Dworkin (1977) argues that courts should decide hard cases on grounds of principles, not policy.

    • Dworkin is keen to marginalise the role of discretion in defending his theory of law and does this by arguing that judicial decisions are based on arguments of principle.

    • Discretion ‘does not exist except as an area left open by a surrounding belt of restriction. It is...

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