The Invisible Justice System: Discretion and the Law

This anthology presents articles on various aspects of discretionary decisionmaking in the administration of justice. Discretionary justice suggests latitude of decisionmaking rather than formality or certainty, and unlike the symbolic idea of due process, it suggests that idiosyncrasy rather than rules may guide decisionmaking within the administration of criminal justice at all levels of the police, court, and penal systems. The relationship between forms of discretion and the criminal justice system is explored. The role of discretion at the arrest, prosecution, and sentencing levels as well as within the framework of correctional institutions is examined. The development of the discretionary ethic is discussed, and the severity and legality of its application in criminal justice procedures are examined. Discretion on the part of the police is covered, with special attention to legal norms and discretion in the police sentencing processes, factors in police discretion and decisionmaking, and administrative problems in controlling the exercise of police authority. An approach to the legal control of police in terms of discretionary powers is presented. The role of prosecutorial discretion is underscored; the application of discretion during charging and plea bargaining processes is examined, and means for controlling prosecutorial discretion are discussed. Judicial discretion during sentencing is also examined, with attention to pretrial decisionmaking, the growth and consequences of sentencing discretion, and contemporary sentencing proposals. Finally, the application of discretionary powers within the prison environment is summarized; decisionmaking within the prison community, the control of discretionary powers of prison organizations, the use of discretion in determining the severity of punishment for incarcerated offenders, and discretion within the parole bureaucracies decisionmaking process are discussed.