the role of discretion in the criminal justice system essay

The Role of Discretion in the Criminal Justice System

Although a substantial body of research suggests that the discretion of discretion of actors in the criminal justice system is important, there is disagreement in the existing empirical literature over its role. Studies in this literature generally hypothesize that discretion plays one of two roles: either it serves as the means by which changing broad social norms against crime causes changes in sentencing patterns, or it serves as the means by which internal social norms of the criminal justice system prevent the implementation of formal changes in laws. We reject both of these hypotheses using data on the sentencing of California prisoners before and after Proposition 8, which provided for sentence enhancements for those convicted of certain serious' crimes with qualifying' criminal histories. We find that an increase in the statutory sentence for a given crime can increase sentence length for those who are charged with the crime, and also for those who are charged with factually 'similar' crimes, where a 'similar' crime is defined as one that has legal elements in common with the given crime. These spillovers are consistent with neither broad social norms nor internal social norms, so we conclude that discretion takes a less-well studied form, which we call 'prosecutorial maximization.'

• Acknowledgements and Disclosures

MARC RIS BibTeΧ

Download Citation Data

Published Versions

More from nber.

In addition to working papers , the NBER disseminates affiliates’ latest findings through a range of free periodicals — the NBER Reporter , the NBER Digest , the Bulletin on Retirement and Disability , the Bulletin on Health , and the Bulletin on Entrepreneurship  — as well as online conference reports , video lectures , and interviews .

• Subject List
• Take a Tour
• For Authors
• Subscriber Services
• Publications
• African American Studies
• African Studies
• American Literature
• Anthropology
• Architecture Planning and Preservation
• Art History
• Atlantic History
• Biblical Studies
• British and Irish Literature
• Childhood Studies
• Chinese Studies
• Cinema and Media Studies
• Communication

Criminology

• Environmental Science
• Evolutionary Biology
• International Law
• International Relations
• Islamic Studies
• Jewish Studies
• Latin American Studies
• Latino Studies
• Linguistics
• Literary and Critical Theory
• Medieval Studies
• Military History
• Political Science
• Public Health
• Renaissance and Reformation
• Social Work
• Urban Studies
• Victorian Literature
• Browse All Subjects

How to Subscribe

• Free Trials

In This Article Expand or collapse the "in this article" section Discretion in the Criminal Justice System

Introduction, general overviews.

• General Theories of Sentencing
• Selection Bias
• Crime Control and Crime Prevention
• Fairness and Racial Disparity
• Justice and Wrongful Conviction
• Legislatures
• Prosecutors
• Parole and Probation

Related Articles Expand or collapse the "related articles" section about

About related articles close popup.

Lorem Ipsum Sit Dolor Amet

Vestibulum ante ipsum primis in faucibus orci luctus et ultrices posuere cubilia Curae; Aliquam ligula odio, euismod ut aliquam et, vestibulum nec risus. Nulla viverra, arcu et iaculis consequat, justo diam ornare tellus, semper ultrices tellus nunc eu tellus.

• Criminal Justice Ethics
• Drug Courts
• Mandatory Minimum Sentencing
• Policing and Law Enforcement
• Prosecution and Courts
• Sentencing Guidelines
• Sentencing Policy

Other Subject Areas

Forthcoming articles expand or collapse the "forthcoming articles" section.

• Education Programs in Prison
• Mixed Methods Research in Criminal Justice and Criminology
• Victim Impact Statements
• Find more forthcoming articles...
• Export Citations
• Share This Facebook LinkedIn Twitter

Discretion in the Criminal Justice System by Shawn D. Bushway , Brian Forst LAST REVIEWED: 02 March 2011 LAST MODIFIED: 02 March 2011 DOI: 10.1093/obo/9780195396607-0083

Discretion is the latitude granted officials to act under a formal set of rules and in a public capacity. The rules themselves are usually the result of discretion by other actors in the criminal justice system, such as the legislature, which has created the criminal code for the jurisdiction. However, even the most detailed rules allow for discretion, and it is possible that this discretion will allow actors subject to the rules to countermand or contradict the rules. The best example of this type of contradiction comes in the case of mandatory sentences, where legislative intent is frequently averted through the use of prosecutorial discretion. Even if executed “within” the rules, however, discretion can lead directly to disparity, where “like” cases are treated differently. In the case of sentencing, disparity involves the application of different punishments to cases that appear to be identical on the merits, or alternatively, the application of same punishment to cases that appear different. It is common to focus on disparity along a particular dimension, such as race. Disparity in this framework takes on a different meaning, and refers instead to the fact that individuals with a given characteristic are over- (or under-) represented in the criminal justice system relative to their representation either in the population or in the commission of a type of crime. Racial disparity is further decomposed into two types: warranted or unwarranted. Warranted disparity is the variation in outcomes due to legally relevant factors such as criminal history, crime type, and crime severity, which are correlated with race. Unwarranted disparity is the variation in outcomes that can be reasonably identified as being the sole result of race or other extralegal factors (e.g., gender) after all legally mandated sentencing factors are taken into account. This framework crystallizes the importance of rules in the empirical analysis of discretion. Any analysis that does not fully account for the legally mandated process (and factors) runs the risk of mistakenly labeling disparity as unwarranted when, in fact, it may be “warranted” according to the rules of the system. But it also raises the specter of too much deference to the rules, especially in cases where the rules themselves have the potential to create disparity, as in the case of federal rules that call for tougher sanctions for dealing in “crack” cocaine rather than powder cocaine. For both of these reasons, any discussion of discretion must start from a review of the goals of the system and an understanding of how these goals are reflected in the formal rules of a system with many moving parts.

In their account of the American Bar Foundation survey of 1953–1969 ( Ohlin and Remington 1993 ), Editors Lloyd Ohlin and Frank Remington highlight the central importance of discretion in the functioning of the criminal justice system (CJS). They describe the CJS as a complicated set of interdependent actors who act on cases involving individuals accused of crimes. Samuel Walker 1992 adds that the term system is perhaps misleading, because the police, courts, and corrections are largely independent of one another, although the actions of each set of actors clearly have an impact on the others. The President’s Commission on Law Enforcement and Administration of Justice and Katzenbach 1967 elaborated on the American Bar Foundation survey by describing the complex web of relationships among these actors. For example, while judges can exercise discretion only in cases involving arrested offenders that prosecutors charge with crimes, sentencing policies and practices influence the actions of police and prosecutors. Because of the salience of sentencing policy to the exercise of discretion generally, sentencing policy warrants treatment as a driver of discretion. The National Research Council’s 1983 , a landmark review of sentencing, offers a first systematic assessment of sentencing goals, policies, and the disparity and discrimination that can follow a lack of consensus on the fundamental purposes of sentencing. Two other classics on discretion are also included here: First, Dworkin 1977 treatment of the subject, which distinguishes between the routine exercise of discretion and the more controversial use of discretion to alter policies viewed as misguided; and second, Gottfredson and Gottfredson 1988 , a book on discretion, which offers a thoughtful account of the essential aspects of discretion and how it can be used effectively to improve the functioning of the criminal justice system.

Dworkin, Ronald. 1977. Taking rights seriously . Cambridge, MA: Harvard Univ. Press.

This book is a legal-theory classic on discretion. It distinguishes discretion from ordinary personal decision making, not accountable to a set of standards or a higher authority (p. 31). Dworkin distinguishes further between “weak” (ordinary judgment) and “strong” discretion (pp. 31–32), which draws on principles and is invoked under a duty that transcends normally applicable technical rules, relating to an “ultimate social rule or set of social rules” (p. 69).

Gottfredson, Michael R., and Don M. Gottfredson. 1988. Decision making in criminal justice: Toward the rational exercise of discretion . New York: Plenum.

An excellent book-length treatment of the decisions that create the flowchart in President’s Commission on Law Enforcement and Administration of Justice and Katzenbach 1967 , including the decision by the victim to report the crime, an often overlooked part of the process. This text is probably best for a graduate-level class.

National Research Council 1983. “Sentencing practices and the sentencing reform movement.” In Research on sentencing: The search for reform . Vol. 1. Edited by Alfred Blumstein, 39–68. Washington, DC: National Academies.

This is the introduction to the landmark National Research Council volume on sentencing. The first chapter is a very readable discussion of the actors in the system, including the legislatures. The chapter is particularly noteworthy for its discussion of the goals of the system, including justice, fairness, and crime control/prevention, and the changing nature of these goals. Recommended for all readers.

Ohlin, Lloyd E., and Frank J. Remington. 1993. Discretion in criminal justice: The tension between individualization and uniformity . SUNY Series in New Directions in Criminal Justice Studies. Albany: State Univ. of New York Press.

Based on the landmark 1957 American Bar Foundation survey, this anthology gives a systemic view of the criminal justice system, in terms of the decisions made by police, prosecutors, judges, and corrections officials: practitioners prefer flexibility to rules; discretion is exercised mostly at the lowest levels of the organization (especially in policing and prosecution) and with limited transparency; and attempts to control decisions at one stage affect decisions made by agents at other stages of the process, in a hydraulic manner.

President’s Commission on Law Enforcement and Administration of Justice and Nicholas de B. Katzenbach. 1967. The challenge of crime in a free society. Washington, DC: Government Printing Office.

This is an important historical document notable for its inclusion of the now-iconic “criminal justice flowchart” (pp. 8–9), which highlights the complexity of the system and the process of selection by which ever fewer defendants proceed farther into the system. The document is also notable for its consideration of police, courts, and corrections (chapters 4, 5, and 6) in the context of crime control. An updated version of the chart can be found on the Bureau of Justice Statistics website .

Walker, Samuel. 1992. Origins of the contemporary criminal justice paradigm: The American Bar Foundation survey, 1953–1969. Justice Quarterly 9.1: 47–76.

DOI: 10.1080/07418829200091251

Although somewhat unconventional in its historical approach, the article does a good job of describing the evolution of the concept of the “criminal justice system” and the role of discretion within that system. The paper is very readable and should generate much discussion about the importance of paradigms in a graduate or undergraduate class.

back to top

Users without a subscription are not able to see the full content on this page. Please subscribe or login .

Oxford Bibliographies Online is available by subscription and perpetual access to institutions. For more information or to contact an Oxford Sales Representative click here .

• About Criminology »
• Meet the Editorial Board »
• Active Offender Research
• Adler, Freda
• Adversarial System of Justice
• Adverse Childhood Experiences
• Aging Prison Population, The
• Airport and Airline Security
• Alcohol and Drug Prohibition
• Alcohol Use, Policy and Crime
• Alt-Right Gangs and White Power Youth Groups
• Animals, Crimes Against
• Back-End Sentencing and Parole Revocation
• Bail and Pretrial Detention
• Batterer Intervention Programs
• Bentham, Jeremy
• Big Data and Communities and Crime
• Biosocial Criminology
• Black's Theory of Law and Social Control
• Blumstein, Alfred
• Boot Camps and Shock Incarceration Programs
• Burglary, Residential
• Bystander Intervention
• Capital Punishment
• Chambliss, William
• Chicago School of Criminology, The
• Child Maltreatment
• Chinese Triad Society
• Civil Protection Orders
• Collateral Consequences of Felony Conviction and Imprisonm...
• Collective Efficacy
• Commercial and Bank Robbery
• Commercial Sexual Exploitation of Children
• Communicating Scientific Findings in the Courtroom
• Community Change and Crime
• Community Corrections
• Community Disadvantage and Crime
• Community-Based Justice Systems
• Community-Based Substance Use Prevention
• Comparative Criminal Justice Systems
• CompStat Models of Police Performance Management
• Confessions, False and Coerced
• Conservation Criminology
• Consumer Fraud
• Contextual Analysis of Crime
• Control Balance Theory
• Convict Criminology
• Co-Offending and the Role of Accomplices
• Corporate Crime
• Costs of Crime and Justice
• Courts, Drug
• Courts, Juvenile
• Courts, Mental Health
• Courts, Problem-Solving
• Crime and Justice in Latin America
• Crime, Campus
• Crime Control Policy
• Crime Control, Politics of
• Crime, (In)Security, and Islam
• Crime Prevention, Delinquency and
• Crime Prevention, Situational
• Crime Prevention, Voluntary Organizations and
• Crime Trends
• Crime Victims' Rights Movement
• Criminal Career Research
• Criminal Decision Making, Emotions in
• Criminal Justice Data Sources
• Criminal Justice Fines and Fees
• Criminal Justice Reform, Politics of
• Criminal Justice System, Discretion in the
• Criminal Records
• Criminal Retaliation
• Criminal Talk
• Criminology and Political Science
• Criminology of Genocide, The
• Critical Criminology
• Cross-National Crime
• Cross-Sectional Research Designs in Criminology and Crimin...
• Cultural Criminology
• Cultural Theories
• Cybercrime Investigations and Prosecutions
• Cycle of Violence
• Deadly Force
• Defense Counsel
• Defining "Success" in Corrections and Reentry
• Developmental and Life-Course Criminology
• Digital Piracy
• Driving and Traffic Offenses
• Drug Control
• Drug Trafficking, International
• Drugs and Crime
• Elder Abuse
• Electronically Monitored Home Confinement
• Employee Theft
• Environmental Crime and Justice
• Experimental Criminology
• Family Violence
• Fear of Crime and Perceived Risk
• Felon Disenfranchisement
• Feminist Theories
• Feminist Victimization Theories
• Fencing and Stolen Goods Markets
• Firearms and Violence
• Forensic Science
• For-Profit Private Prisons and the Criminal Justice–Indust...
• Gangs, Peers, and Co-offending
• Gender and Crime
• Gendered Crime Pathways
• General Opportunity Victimization Theories
• Genetics, Environment, and Crime
• Green Criminology
• Halfway Houses
• Harm Reduction and Risky Behaviors
• Hate Crime Legislation
• Healthcare Fraud
• Hirschi, Travis
• History of Crime in the United Kingdom
• History of Criminology
• Homelessness and Crime
• Homicide Victimization
• Honor Cultures and Violence
• Hot Spots Policing
• Human Rights
• Human Trafficking
• Identity Theft
• Immigration, Crime, and Justice
• Incarceration, Mass
• Incarceration, Public Health Effects of
• Income Tax Evasion
• Indigenous Criminology
• Institutional Anomie Theory
• Integrated Theory
• Intermediate Sanctions
• Interpersonal Violence, Historical Patterns of
• Interrogation
• Intimate Partner Violence, Criminological Perspectives on
• Intimate Partner Violence, Police Responses to
• Investigation, Criminal
• Juvenile Delinquency
• Juvenile Justice System, The
• Kornhauser, Ruth Rosner
• Labeling Theory
• Labor Markets and Crime
• Land Use and Crime
• Lead and Crime
• LGBTQ Intimate Partner Violence
• LGBTQ People in Prison
• Life Without Parole Sentencing
• Local Institutions and Neighborhood Crime
• Lombroso, Cesare
• Longitudinal Research in Criminology
• Mapping and Spatial Analysis of Crime, The
• Mass Media, Crime, and Justice
• Measuring Crime
• Mediation and Dispute Resolution Programs
• Mental Health and Crime
• Merton, Robert K.
• Meta-analysis in Criminology
• Middle-Class Crime and Criminality
• Migrant Detention and Incarceration
• Mixed Methods Research in Criminology
• Money Laundering
• Motor Vehicle Theft
• Multi-Level Marketing Scams
• Murder, Serial
• Narrative Criminology
• National Deviancy Symposia, The
• Nature Versus Nurture
• Neighborhood Disorder
• Neutralization Theory
• New Penology, The
• Offender Decision-Making and Motivation
• Offense Specialization/Expertise
• Organized Crime
• Outlaw Motorcycle Clubs
• Panel Methods in Criminology
• Peacemaking Criminology
• Peer Networks and Delinquency
• Performance Measurement and Accountability Systems
• Personality and Trait Theories of Crime
• Persons with a Mental Illness, Police Encounters with
• Phenomenological Theories of Crime
• Plea Bargaining
• Police Administration
• Police Cooperation, International
• Police Discretion
• Police Effectiveness
• Police History
• Police Militarization
• Police Misconduct
• Police, Race and the
• Police Use of Force
• Police, Violence against the
• Policing, Body-Worn Cameras and
• Policing, Broken Windows
• Policing, Community and Problem-Oriented
• Policing Cybercrime
• Policing, Evidence-Based
• Policing, Intelligence-Led
• Policing, Privatization of
• Policing, Proactive
• Policing, School
• Policing, Stop-and-Frisk
• Policing, Third Party
• Polyvictimization
• Positivist Criminology
• Pretrial Detention, Alternatives to
• Pretrial Diversion
• Prison Administration
• Prison Classification
• Prison, Disciplinary Segregation in
• Prison Education Exchange Programs
• Prison Gangs and Subculture
• Prison History
• Prison Labor
• Prison Visitation
• Prisoner Reentry
• Prisons and Jails
• Prisons, HIV in
• Private Security
• Probation Revocation
• Procedural Justice
• Property Crime
• Prostitution
• Psychiatry, Psychology, and Crime: Historical and Current ...
• Psychology and Crime
• Public Criminology
• Public Opinion, Crime and Justice
• Public Order Crimes
• Public Social Control and Neighborhood Crime
• Punishment Justification and Goals
• Qualitative Methods in Criminology
• Queer Criminology
• Race and Sentencing Research Advancements
• Race, Ethnicity, Crime, and Justice
• Racial Threat Hypothesis
• Racial Profiling
• Rape and Sexual Assault
• Rape, Fear of
• Rational Choice Theories
• Rehabilitation
• Religion and Crime
• Restorative Justice
• Risk Assessment
• Routine Activity Theories
• School Bullying
• School Crime and Violence
• School Safety, Security, and Discipline
• Search Warrants
• Seasonality and Crime
• Self-Control, The General Theory:
• Self-Report Crime Surveys
• Sentencing Enhancements
• Sentencing, Evidence-Based
• Sex Offender Policies and Legislation
• Sex Trafficking
• Sexual Revictimization
• Situational Action Theory
• Snitching and Use of Criminal Informants
• Social and Intellectual Context of Criminology, The
• Social Construction of Crime, The
• Social Control of Tobacco Use
• Social Control Theory
• Social Disorganization
• Social Ecology of Crime
• Social Learning Theory
• Social Networks
• Social Threat and Social Control
• Solitary Confinement
• South Africa, Crime and Justice in
• Sport Mega-Events Security
• Stalking and Harassment
• State Crime
• State Dependence and Population Heterogeneity in Theories ...
• Strain Theories
• Street Code
• Street Robbery
• Substance Use and Abuse
• Surveillance, Public and Private
• Sutherland, Edwin H.
• Technology and the Criminal Justice System
• Technology, Criminal Use of
• Terrorism and Hate Crime
• Terrorism, Criminological Explanations for
• Testimony, Eyewitness
• Therapeutic Jurisprudence
• Trajectory Methods in Criminology
• Transnational Crime
• Truth-In-Sentencing
• Urban Politics and Crime
• US War on Terrorism, Legal Perspectives on the
• Victimization, Adolescent
• Victimization, Biosocial Theories of
• Victimization Patterns and Trends
• Victimization, Repeat
• Victimization, Vicarious and Related Forms of Secondary Tr...
• Victimless Crime
• Victim-Offender Overlap, The
• Violence Against Women
• Violence, Youth
• Violent Crime
• White-Collar Crime
• White-Collar Crime, The Global Financial Crisis and
• White-Collar Crime, Women and
• Wilson, James Q.
• Wolfgang, Marvin
• Women, Girls, and Reentry
• Wrongful Conviction
• Privacy Policy
• Cookie Policy
• Legal Notice
• Accessibility

Powered by:

• [66.249.64.20|185.66.15.189]
• 185.66.15.189

• Help & FAQ

The role of discretion in the criminal justice system

Research output : Contribution to journal › Article › peer-review

Although a substantial body of research suggests that the discretion of actors in the criminal justice system is important, there is disagreement in the existing empirical literature over the specific role of discretion and over the extent to which discretion influences criminal justice outcomes. Studies in this literature generally hypothesize that discretion plays one of two roles: either it serves as the means by which changing broad social norms against crime cause changes in sentencing patterns (with concurrent changes in formal laws reflecting broad social norms but not causing criminal justice outcomes), or it serves as the means by which internal social norms of the criminal justice system prevent the implementation of formal changes in laws. We reject both of these hypotheses using data on the sentencing of California prisoners before and after the passage of Proposition 8, which provided for sentence enhancements for those convicted of certain "serious" crimes with "qualifying" criminal histories. We find that an increase in the statutory sentence for a given crime can increase sentence length for those who are charged with the crime, and also for those who are charged with factually "similar" crimes, where a "similar" crime is defined as one that has legal elements in common with the given crime. These spillovers are consistent with neither broad social norms nor internal social norms, so we conclude that discretion takes a less-well studied form, which we call "prosecutorial maximization.".

ASJC Scopus subject areas

• Economics and Econometrics
• Organizational Behavior and Human Resource Management

Access to Document

• https://doi.org/10.1093/jleo/14.2.256

Other files and links

• Link to publication in Scopus
• Link to the citations in Scopus

Fingerprint

• Discretion Business & Economics 100%
• Criminal Justice Systems Social Sciences 91%
• Social Norms Business & Economics 72%
• offense Social Sciences 61%
• Criminal Justice Social Sciences 25%
• Law Social Sciences 14%
• Enhancement Business & Economics 13%
• prisoner Social Sciences 13%

T1 - The role of discretion in the criminal justice system

AU - Kessler, Daniel P.

AU - Piehl, Anne Morrison

PY - 1998/10

Y1 - 1998/10

N2 - Although a substantial body of research suggests that the discretion of actors in the criminal justice system is important, there is disagreement in the existing empirical literature over the specific role of discretion and over the extent to which discretion influences criminal justice outcomes. Studies in this literature generally hypothesize that discretion plays one of two roles: either it serves as the means by which changing broad social norms against crime cause changes in sentencing patterns (with concurrent changes in formal laws reflecting broad social norms but not causing criminal justice outcomes), or it serves as the means by which internal social norms of the criminal justice system prevent the implementation of formal changes in laws. We reject both of these hypotheses using data on the sentencing of California prisoners before and after the passage of Proposition 8, which provided for sentence enhancements for those convicted of certain "serious" crimes with "qualifying" criminal histories. We find that an increase in the statutory sentence for a given crime can increase sentence length for those who are charged with the crime, and also for those who are charged with factually "similar" crimes, where a "similar" crime is defined as one that has legal elements in common with the given crime. These spillovers are consistent with neither broad social norms nor internal social norms, so we conclude that discretion takes a less-well studied form, which we call "prosecutorial maximization.".

AB - Although a substantial body of research suggests that the discretion of actors in the criminal justice system is important, there is disagreement in the existing empirical literature over the specific role of discretion and over the extent to which discretion influences criminal justice outcomes. Studies in this literature generally hypothesize that discretion plays one of two roles: either it serves as the means by which changing broad social norms against crime cause changes in sentencing patterns (with concurrent changes in formal laws reflecting broad social norms but not causing criminal justice outcomes), or it serves as the means by which internal social norms of the criminal justice system prevent the implementation of formal changes in laws. We reject both of these hypotheses using data on the sentencing of California prisoners before and after the passage of Proposition 8, which provided for sentence enhancements for those convicted of certain "serious" crimes with "qualifying" criminal histories. We find that an increase in the statutory sentence for a given crime can increase sentence length for those who are charged with the crime, and also for those who are charged with factually "similar" crimes, where a "similar" crime is defined as one that has legal elements in common with the given crime. These spillovers are consistent with neither broad social norms nor internal social norms, so we conclude that discretion takes a less-well studied form, which we call "prosecutorial maximization.".

UR - http://www.scopus.com/inward/record.url?scp=0032219103&partnerID=8YFLogxK

UR - http://www.scopus.com/inward/citedby.url?scp=0032219103&partnerID=8YFLogxK

U2 - https://doi.org/10.1093/jleo/14.2.256

DO - https://doi.org/10.1093/jleo/14.2.256

M3 - Article

SN - 8756-6222

JO - Journal of Law, Economics, and Organization

JF - Journal of Law, Economics, and Organization

• Search Menu
• Browse content in A - General Economics and Teaching
• Browse content in A1 - General Economics
• A12 - Relation of Economics to Other Disciplines
• A14 - Sociology of Economics
• Browse content in C - Mathematical and Quantitative Methods
• Browse content in C1 - Econometric and Statistical Methods and Methodology: General
• C11 - Bayesian Analysis: General
• C13 - Estimation: General
• Browse content in C2 - Single Equation Models; Single Variables
• C21 - Cross-Sectional Models; Spatial Models; Treatment Effect Models; Quantile Regressions
• C23 - Panel Data Models; Spatio-temporal Models
• Browse content in C3 - Multiple or Simultaneous Equation Models; Multiple Variables
• C31 - Cross-Sectional Models; Spatial Models; Treatment Effect Models; Quantile Regressions; Social Interaction Models
• Browse content in C4 - Econometric and Statistical Methods: Special Topics
• C44 - Operations Research; Statistical Decision Theory
• Browse content in C6 - Mathematical Methods; Programming Models; Mathematical and Simulation Modeling
• C63 - Computational Techniques; Simulation Modeling
• Browse content in C7 - Game Theory and Bargaining Theory
• C70 - General
• C72 - Noncooperative Games
• C73 - Stochastic and Dynamic Games; Evolutionary Games; Repeated Games
• C78 - Bargaining Theory; Matching Theory
• Browse content in C8 - Data Collection and Data Estimation Methodology; Computer Programs
• C81 - Methodology for Collecting, Estimating, and Organizing Microeconomic Data; Data Access
• Browse content in C9 - Design of Experiments
• C91 - Laboratory, Individual Behavior
• C92 - Laboratory, Group Behavior
• C93 - Field Experiments
• Browse content in D - Microeconomics
• Browse content in D0 - General
• D02 - Institutions: Design, Formation, Operations, and Impact
• D03 - Behavioral Microeconomics: Underlying Principles
• Browse content in D1 - Household Behavior and Family Economics
• D10 - General
• D13 - Household Production and Intrahousehold Allocation
• D14 - Household Saving; Personal Finance
• D18 - Consumer Protection
• Browse content in D2 - Production and Organizations
• D20 - General
• D21 - Firm Behavior: Theory
• D22 - Firm Behavior: Empirical Analysis
• D23 - Organizational Behavior; Transaction Costs; Property Rights
• D24 - Production; Cost; Capital; Capital, Total Factor, and Multifactor Productivity; Capacity
• Browse content in D3 - Distribution
• D30 - General
• Browse content in D4 - Market Structure, Pricing, and Design
• D44 - Auctions
• Browse content in D6 - Welfare Economics
• D62 - Externalities
• D63 - Equity, Justice, Inequality, and Other Normative Criteria and Measurement
• Browse content in D7 - Analysis of Collective Decision-Making
• D71 - Social Choice; Clubs; Committees; Associations
• D72 - Political Processes: Rent-seeking, Lobbying, Elections, Legislatures, and Voting Behavior
• D73 - Bureaucracy; Administrative Processes in Public Organizations; Corruption
• D74 - Conflict; Conflict Resolution; Alliances; Revolutions
• D78 - Positive Analysis of Policy Formulation and Implementation
• D79 - Other
• Browse content in D8 - Information, Knowledge, and Uncertainty
• D81 - Criteria for Decision-Making under Risk and Uncertainty
• D82 - Asymmetric and Private Information; Mechanism Design
• D83 - Search; Learning; Information and Knowledge; Communication; Belief; Unawareness
• D85 - Network Formation and Analysis: Theory
• D86 - Economics of Contract: Theory
• D9 - Micro-Based Behavioral Economics
• Browse content in E - Macroeconomics and Monetary Economics
• Browse content in E2 - Consumption, Saving, Production, Investment, Labor Markets, and Informal Economy
• E24 - Employment; Unemployment; Wages; Intergenerational Income Distribution; Aggregate Human Capital; Aggregate Labor Productivity
• E26 - Informal Economy; Underground Economy
• Browse content in F - International Economics
• Browse content in F1 - Trade
• F10 - General
• F13 - Trade Policy; International Trade Organizations
• F15 - Economic Integration
• Browse content in F5 - International Relations, National Security, and International Political Economy
• F50 - General
• F51 - International Conflicts; Negotiations; Sanctions
• Browse content in G - Financial Economics
• G0 - General
• Browse content in G2 - Financial Institutions and Services
• G24 - Investment Banking; Venture Capital; Brokerage; Ratings and Ratings Agencies
• G28 - Government Policy and Regulation
• Browse content in G3 - Corporate Finance and Governance
• G30 - General
• G31 - Capital Budgeting; Fixed Investment and Inventory Studies; Capacity
• G33 - Bankruptcy; Liquidation
• G34 - Mergers; Acquisitions; Restructuring; Corporate Governance
• G38 - Government Policy and Regulation
• Browse content in H - Public Economics
• H0 - General
• Browse content in H1 - Structure and Scope of Government
• H10 - General
• H11 - Structure, Scope, and Performance of Government
• Browse content in H2 - Taxation, Subsidies, and Revenue
• H21 - Efficiency; Optimal Taxation
• H24 - Personal Income and Other Nonbusiness Taxes and Subsidies; includes inheritance and gift taxes
• H3 - Fiscal Policies and Behavior of Economic Agents
• Browse content in H4 - Publicly Provided Goods
• H40 - General
• H41 - Public Goods
• H42 - Publicly Provided Private Goods
• Browse content in H5 - National Government Expenditures and Related Policies
• H53 - Government Expenditures and Welfare Programs
• H56 - National Security and War
• H57 - Procurement
• Browse content in H7 - State and Local Government; Intergovernmental Relations
• H70 - General
• H71 - State and Local Taxation, Subsidies, and Revenue
• H72 - State and Local Budget and Expenditures
• H74 - State and Local Borrowing
• H76 - State and Local Government: Other Expenditure Categories
• H77 - Intergovernmental Relations; Federalism; Secession
• Browse content in H8 - Miscellaneous Issues
• H83 - Public Administration; Public Sector Accounting and Audits
• Browse content in I - Health, Education, and Welfare
• Browse content in I1 - Health
• I11 - Analysis of Health Care Markets
• I12 - Health Behavior
• I18 - Government Policy; Regulation; Public Health
• I2 - Education and Research Institutions
• Browse content in J - Labor and Demographic Economics
• Browse content in J1 - Demographic Economics
• J12 - Marriage; Marital Dissolution; Family Structure; Domestic Abuse
• J15 - Economics of Minorities, Races, Indigenous Peoples, and Immigrants; Non-labor Discrimination
• Browse content in J2 - Demand and Supply of Labor
• J24 - Human Capital; Skills; Occupational Choice; Labor Productivity
• Browse content in J3 - Wages, Compensation, and Labor Costs
• J30 - General
• J31 - Wage Level and Structure; Wage Differentials
• J33 - Compensation Packages; Payment Methods
• Browse content in J4 - Particular Labor Markets
• J41 - Labor Contracts
• J42 - Monopsony; Segmented Labor Markets
• J45 - Public Sector Labor Markets
• Browse content in J5 - Labor-Management Relations, Trade Unions, and Collective Bargaining
• J50 - General
• J51 - Trade Unions: Objectives, Structure, and Effects
• J52 - Dispute Resolution: Strikes, Arbitration, and Mediation; Collective Bargaining
• Browse content in J6 - Mobility, Unemployment, Vacancies, and Immigrant Workers
• J61 - Geographic Labor Mobility; Immigrant Workers
• J62 - Job, Occupational, and Intergenerational Mobility
• J63 - Turnover; Vacancies; Layoffs
• Browse content in J8 - Labor Standards: National and International
• J83 - Workers' Rights
• Browse content in K - Law and Economics
• Browse content in K0 - General
• K00 - General
• Browse content in K1 - Basic Areas of Law
• K10 - General
• K11 - Property Law
• K12 - Contract Law
• K13 - Tort Law and Product Liability; Forensic Economics
• K14 - Criminal Law
• K16 - Election Law
• Browse content in K2 - Regulation and Business Law
• K20 - General
• K21 - Antitrust Law
• K22 - Business and Securities Law
• K23 - Regulated Industries and Administrative Law
• Browse content in K3 - Other Substantive Areas of Law
• K31 - Labor Law
• K32 - Environmental, Health, and Safety Law
• K33 - International Law
• K35 - Personal Bankruptcy Law
• K36 - Family and Personal Law
• K37 - Immigration Law
• Browse content in K4 - Legal Procedure, the Legal System, and Illegal Behavior
• K40 - General
• K41 - Litigation Process
• K42 - Illegal Behavior and the Enforcement of Law
• K49 - Other
• Browse content in L - Industrial Organization
• Browse content in L1 - Market Structure, Firm Strategy, and Market Performance
• L10 - General
• L12 - Monopoly; Monopolization Strategies
• L13 - Oligopoly and Other Imperfect Markets
• L14 - Transactional Relationships; Contracts and Reputation; Networks
• L15 - Information and Product Quality; Standardization and Compatibility
• L19 - Other
• Browse content in L2 - Firm Objectives, Organization, and Behavior
• L20 - General
• L21 - Business Objectives of the Firm
• L22 - Firm Organization and Market Structure
• L23 - Organization of Production
• L24 - Contracting Out; Joint Ventures; Technology Licensing
• L25 - Firm Performance: Size, Diversification, and Scope
• L26 - Entrepreneurship
• Browse content in L3 - Nonprofit Organizations and Public Enterprise
• L31 - Nonprofit Institutions; NGOs; Social Entrepreneurship
• L33 - Comparison of Public and Private Enterprises and Nonprofit Institutions; Privatization; Contracting Out
• Browse content in L4 - Antitrust Issues and Policies
• L40 - General
• L41 - Monopolization; Horizontal Anticompetitive Practices
• L42 - Vertical Restraints; Resale Price Maintenance; Quantity Discounts
• L49 - Other
• Browse content in L5 - Regulation and Industrial Policy
• L50 - General
• L51 - Economics of Regulation
• Browse content in L6 - Industry Studies: Manufacturing
• L60 - General
• Browse content in L7 - Industry Studies: Primary Products and Construction
• L71 - Mining, Extraction, and Refining: Hydrocarbon Fuels
• Browse content in L8 - Industry Studies: Services
• L82 - Entertainment; Media
• L84 - Personal, Professional, and Business Services
• L86 - Information and Internet Services; Computer Software
• Browse content in L9 - Industry Studies: Transportation and Utilities
• L95 - Gas Utilities; Pipelines; Water Utilities
• Browse content in M - Business Administration and Business Economics; Marketing; Accounting; Personnel Economics
• Browse content in M1 - Business Administration
• M12 - Personnel Management; Executives; Executive Compensation
• M14 - Corporate Culture; Social Responsibility
• M15 - IT Management
• Browse content in M2 - Business Economics
• M21 - Business Economics
• Browse content in M4 - Accounting and Auditing
• M40 - General
• Browse content in M5 - Personnel Economics
• M50 - General
• M51 - Firm Employment Decisions; Promotions
• M52 - Compensation and Compensation Methods and Their Effects
• M53 - Training
• Browse content in N - Economic History
• Browse content in N1 - Macroeconomics and Monetary Economics; Industrial Structure; Growth; Fluctuations
• N13 - Europe: Pre-1913
• N14 - Europe: 1913-
• N15 - Asia including Middle East
• Browse content in N2 - Financial Markets and Institutions
• N24 - Europe: 1913-
• Browse content in N3 - Labor and Consumers, Demography, Education, Health, Welfare, Income, Wealth, Religion, and Philanthropy
• N31 - U.S.; Canada: Pre-1913
• N32 - U.S.; Canada: 1913-
• Browse content in N4 - Government, War, Law, International Relations, and Regulation
• N42 - U.S.; Canada: 1913-
• N43 - Europe: Pre-1913
• Browse content in N5 - Agriculture, Natural Resources, Environment, and Extractive Industries
• N50 - General, International, or Comparative
• Browse content in N7 - Transport, Trade, Energy, Technology, and Other Services
• N70 - General, International, or Comparative
• Browse content in N9 - Regional and Urban History
• N91 - U.S.; Canada: Pre-1913
• N92 - U.S.; Canada: 1913-
• Browse content in O - Economic Development, Innovation, Technological Change, and Growth
• Browse content in O1 - Economic Development
• O12 - Microeconomic Analyses of Economic Development
• O16 - Financial Markets; Saving and Capital Investment; Corporate Finance and Governance
• O17 - Formal and Informal Sectors; Shadow Economy; Institutional Arrangements
• Browse content in O3 - Innovation; Research and Development; Technological Change; Intellectual Property Rights
• O31 - Innovation and Invention: Processes and Incentives
• O32 - Management of Technological Innovation and R&D
• O33 - Technological Change: Choices and Consequences; Diffusion Processes
• O35 - Social Innovation
• Browse content in O5 - Economywide Country Studies
• O57 - Comparative Studies of Countries
• Browse content in P - Economic Systems
• Browse content in P1 - Capitalist Systems
• P16 - Political Economy
• Browse content in P2 - Socialist Systems and Transitional Economies
• P26 - Political Economy; Property Rights
• Browse content in P3 - Socialist Institutions and Their Transitions
• P37 - Legal Institutions; Illegal Behavior
• Browse content in P4 - Other Economic Systems
• P45 - International Trade, Finance, Investment, and Aid
• P48 - Political Economy; Legal Institutions; Property Rights; Natural Resources; Energy; Environment; Regional Studies
• Browse content in Q - Agricultural and Natural Resource Economics; Environmental and Ecological Economics
• Browse content in Q3 - Nonrenewable Resources and Conservation
• Q34 - Natural Resources and Domestic and International Conflicts
• Browse content in R - Urban, Rural, Regional, Real Estate, and Transportation Economics
• Browse content in R1 - General Regional Economics
• R12 - Size and Spatial Distributions of Regional Economic Activity
• Browse content in R3 - Real Estate Markets, Spatial Production Analysis, and Firm Location
• R30 - General
• Browse content in Z - Other Special Topics
• Browse content in Z1 - Cultural Economics; Economic Sociology; Economic Anthropology
• Z11 - Economics of the Arts and Literature
• Z13 - Economic Sociology; Economic Anthropology; Social and Economic Stratification
• Z18 - Public Policy
• Browse content in Z2 - Sports Economics
• Z20 - General
• Advance articles
• Editor's Choice
• Author Guidelines
• Submission Site
• Open Access
• About The Journal of Law, Economics, and Organization
• Editorial Board
• Advertising and Corporate Services
• Journals Career Network
• Self-Archiving Policy
• Dispatch Dates
• Journals on Oxford Academic
• Books on Oxford Academic

Article Contents

• < Previous

The Role of Discretion in the Criminal Justice System

• Article contents
• Figures & tables
• Supplementary Data

Daniel P. Kessler, Anne Morrison Piehl, The Role of Discretion in the Criminal Justice System, The Journal of Law, Economics, and Organization , Volume 14, Issue 2, October 1998, Pages 256–276, https://doi.org/10.1093/jleo/14.2.256

• Permissions Icon Permissions

Article PDF first page preview

Email alerts, citing articles via.

• Recommend to your Library

Affiliations

• Online ISSN 1465-7341
• Print ISSN 8756-6222
• Copyright © 2024 Oxford University Press
• About Oxford Academic
• Publish journals with us
• University press partners
• What we publish
• New features  
• Open access
• Institutional account management
• Rights and permissions
• Get help with access
• Accessibility
• Advertising
• Media enquiries
• Oxford University Press
• Oxford Languages
• University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

• Copyright © 2024 Oxford University Press
• Cookie settings
• Cookie policy
• Privacy policy
• Legal notice

This Feature Is Available To Subscribers Only

Sign In or Create an Account

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

About Stanford GSB

• The Leadership
• Dean’s Updates
• School News & History
• Commencement
• Business, Government & Society
• Centers & Institutes
• Center for Entrepreneurial Studies
• Center for Social Innovation
• Stanford Seed

About the Experience

• Learning at Stanford GSB
• Experiential Learning
• Guest Speakers
• Entrepreneurship
• Social Innovation
• Communication
• Life at Stanford GSB
• Collaborative Environment
• Activities & Organizations
• Student Services
• Housing Options
• International Students

Full-Time Degree Programs

• Why Stanford MBA
• Academic Experience
• Financial Aid
• Why Stanford MSx
• Research Fellows Program
• See All Programs

Non-Degree & Certificate Programs

• Executive Education
• Stanford Executive Program
• Programs for Organizations
• The Difference
• Online Programs
• Stanford LEAD
• Seed Transformation Program
• Aspire Program
• Seed Spark Program
• Faculty Profiles
• Academic Areas
• Awards & Honors
• Conferences

Faculty Research

• Publications
• Working Papers
• Case Studies

Research Hub

• Research Labs & Initiatives
• Business Library
• Data, Analytics & Research Computing
• Behavioral Lab

Research Labs

• Cities, Housing & Society Lab
• Golub Capital Social Impact Lab

Research Initiatives

• Corporate Governance Research Initiative
• Corporations and Society Initiative
• Policy and Innovation Initiative
• Rapid Decarbonization Initiative
• Stanford Latino Entrepreneurship Initiative
• Value Chain Innovation Initiative
• Venture Capital Initiative
• Career & Success
• Climate & Sustainability
• Corporate Governance
• Culture & Society
• Finance & Investing
• Government & Politics
• Leadership & Management
• Markets & Trade
• Operations & Logistics
• Opportunity & Access
• Organizational Behavior
• Political Economy
• Social Impact
• Technology & AI
• Opinion & Analysis
• Email Newsletter

Welcome, Alumni

• Communities
• Digital Communities & Tools
• Regional Chapters
• Women’s Programs
• Identity Chapters
• Find Your Reunion
• Career Resources
• Job Search Resources
• Career & Life Transitions
• Programs & Services
• Career Video Library
• Alumni Education
• Research Resources
• Volunteering
• Alumni News
• Class Notes
• Alumni Voices
• Contact Alumni Relations
• Upcoming Events

Admission Events & Information Sessions

• MBA Program
• MSx Program
• PhD Program
• Alumni Events
• All Other Events
• Operations, Information & Technology
• Classical Liberalism
• The Eddie Lunch
• Accounting Summer Camp
• Videos, Code & Data
• California Econometrics Conference
• California Quantitative Marketing PhD Conference
• California School Conference
• China India Insights Conference
• Homo economicus, Evolving
• Political Economics (2023–24)
• Scaling Geologic Storage of CO2 (2023–24)
• A Resilient Pacific: Building Connections, Envisioning Solutions
• Adaptation and Innovation
• Changing Climate
• Civil Society
• Climate Impact Summit
• Climate Science
• Corporate Carbon Disclosures
• Earth’s Seafloor
• Environmental Justice
• Operations and Information Technology
• Organizations
• Sustainability Reporting and Control
• Taking the Pulse of the Planet
• Urban Infrastructure
• Watershed Restoration
• Junior Faculty Workshop on Financial Regulation and Banking
• Ken Singleton Celebration
• Marketing Camp
• Quantitative Marketing PhD Alumni Conference
• Presentations
• Theory and Inference in Accounting Research
• Stanford Closer Look Series
• Quick Guides
• Core Concepts
• Journal Articles
• Glossary of Terms
• Faculty & Staff
• Researchers & Students
• Research Approach
• Charitable Giving
• Financial Health
• Government Services
• Workers & Careers
• Short Course
• Adaptive & Iterative Experimentation
• Incentive Design
• Social Sciences & Behavioral Nudges
• Bandit Experiment Application
• Conferences & Events
• Get Involved
• Reading Materials
• Teaching & Curriculum
• Energy Entrepreneurship
• Faculty & Affiliates
• SOLE Report
• Responsible Supply Chains
• Current Study Usage
• Pre-Registration Information
• Participate in a Study

The Role of Discretion in the Criminal Justice System

By Daniel P. Kessler Anne Morrison Piehl Journal of Law, Economics, and Organizations 1998 Vol. 14 Issue 2 Pages 256-276. Political Economy View Publication

• Priorities for the GSB's Future
• See the Current DEI Report
• Supporting Data
• Research & Insights
• Share Your Thoughts
• Search Fund Primer
• Affiliated Faculty
• Faculty Advisors
• Louis W. Foster Resource Center
• Defining Social Innovation
• Impact Compass
• Global Health Innovation Insights
• Faculty Affiliates
• Student Awards & Certificates
• Changemakers
• Dean Jonathan Levin
• Dean Garth Saloner
• Dean Robert Joss
• Dean Michael Spence
• Dean Robert Jaedicke
• Dean Rene McPherson
• Dean Arjay Miller
• Dean Ernest Arbuckle
• Dean Jacob Hugh Jackson
• Dean Willard Hotchkiss
• Faculty in Memoriam
• Stanford GSB Firsts
• Certificate & Award Recipients
• Teaching Approach
• Analysis and Measurement of Impact
• The Corporate Entrepreneur: Startup in a Grown-Up Enterprise
• Data-Driven Impact
• Designing Experiments for Impact
• Digital Business Transformation
• The Founder’s Right Hand
• Marketing for Measurable Change
• Product Management
• Public Policy Lab: Financial Challenges Facing US Cities
• Public Policy Lab: Homelessness in California
• Lab Features
• Curricular Integration
• View From The Top
• Formation of New Ventures
• Managing Growing Enterprises
• Startup Garage
• Explore Beyond the Classroom
• Stanford Venture Studio
• Summer Program
• Workshops & Events
• The Five Lenses of Entrepreneurship
• Leadership Labs
• Executive Challenge
• Arbuckle Leadership Fellows Program
• Selection Process
• Training Schedule
• Time Commitment
• Learning Expectations
• Post-Training Opportunities
• Who Should Apply
• Introductory T-Groups
• Leadership for Society Program
• Certificate
• 2023 Awardees
• 2022 Awardees
• 2021 Awardees
• 2020 Awardees
• 2019 Awardees
• 2018 Awardees
• Social Management Immersion Fund
• Stanford Impact Founder Fellowships and Prizes
• Stanford Impact Leader Prizes
• Social Entrepreneurship
• Stanford GSB Impact Fund
• Economic Development
• Energy & Environment
• Stanford GSB Residences
• Environmental Leadership
• Stanford GSB Artwork
• A Closer Look
• California & the Bay Area
• Voices of Stanford GSB
• Business & Beneficial Technology
• Business & Sustainability
• Business & Free Markets
• Business, Government, and Society Forum
• Second Year
• Global Experiences
• JD/MBA Joint Degree
• MA Education/MBA Joint Degree
• MD/MBA Dual Degree
• MPP/MBA Joint Degree
• MS Computer Science/MBA Joint Degree
• MS Electrical Engineering/MBA Joint Degree
• MS Environment and Resources (E-IPER)/MBA Joint Degree
• Academic Calendar
• Clubs & Activities
• LGBTQ+ Students
• Military Veterans
• Minorities & People of Color
• Partners & Families
• Students with Disabilities
• Student Support
• Residential Life
• Student Voices
• MBA Alumni Voices
• A Week in the Life
• Career Support
• Employment Outcomes
• Cost of Attendance
• Knight-Hennessy Scholars Program
• Yellow Ribbon Program
• BOLD Fellows Fund
• Application Process
• Loan Forgiveness
• Contact the Financial Aid Office
• Evaluation Criteria
• GMAT & GRE
• English Language Proficiency
• Personal Information, Activities & Awards
• Professional Experience
• Letters of Recommendation
• Optional Short Answer Questions
• Application Fee
• Reapplication
• Deferred Enrollment
• Joint & Dual Degrees
• Entering Class Profile
• Event Schedule
• Ambassadors
• New & Noteworthy
• Ask a Question
• See Why Stanford MSx
• Is MSx Right for You?
• MSx Stories
• Leadership Development
• Career Advancement
• Career Change
• How You Will Learn
• Admission Events
• Personal Information
• Information for Recommenders
• GMAT, GRE & EA
• English Proficiency Tests
• After You’re Admitted
• Daycare, Schools & Camps
• U.S. Citizens and Permanent Residents
• Requirements
• Requirements: Behavioral
• Requirements: Quantitative
• Requirements: Macro
• Requirements: Micro
• Annual Evaluations
• Field Examination
• Research Activities
• Research Papers
• Dissertation
• Oral Examination
• Current Students
• Education & CV
• International Applicants
• Statement of Purpose
• Reapplicants
• Application Fee Waiver
• Deadline & Decisions
• Job Market Candidates
• Academic Placements
• Stay in Touch
• Faculty Mentors
• Current Fellows
• Standard Track
• Fellowship & Benefits
• Group Enrollment
• Program Formats
• Developing a Program
• Diversity & Inclusion
• Strategic Transformation
• Program Experience
• Contact Client Services
• Campus Experience
• Live Online Experience
• Silicon Valley & Bay Area
• Digital Credentials
• Faculty Spotlights
• Participant Spotlights
• Eligibility
• International Participants
• Stanford Ignite
• Frequently Asked Questions
• Founding Donors
• Location Information
• Participant Profile
• Network Membership
• Program Impact
• Collaborators
• Entrepreneur Profiles
• Company Spotlights
• Seed Transformation Network
• Responsibilities
• Current Coaches
• How to Apply
• Meet the Consultants
• Meet the Interns
• Intern Profiles
• Collaborate
• Research Library
• News & Insights
• Program Contacts
• Databases & Datasets
• Research Guides
• Consultations
• Research Workshops
• Career Research
• Research Data Services
• Course Reserves
• Course Research Guides
• Material Loan Periods
• Fines & Other Charges
• Document Delivery
• Interlibrary Loan
• Equipment Checkout
• Print & Scan
• MBA & MSx Students
• PhD Students
• Other Stanford Students
• Faculty Assistants
• Research Assistants
• Stanford GSB Alumni
• Telling Our Story
• Staff Directory
• Site Registration
• Alumni Directory
• Alumni Email
• Privacy Settings & My Profile
• Success Stories
• The Story of Circles
• Support Women’s Circles
• Stanford Women on Boards Initiative
• Alumnae Spotlights
• Insights & Research
• Industry & Professional
• Entrepreneurial Commitment Group
• Recent Alumni
• Half-Century Club
• Fall Reunions
• Spring Reunions
• MBA 25th Reunion
• Half-Century Club Reunion
• Faculty Lectures
• Ernest C. Arbuckle Award
• Alison Elliott Exceptional Achievement Award
• ENCORE Award
• Excellence in Leadership Award
• John W. Gardner Volunteer Leadership Award
• Robert K. Jaedicke Faculty Award
• Jack McDonald Military Service Appreciation Award
• Jerry I. Porras Latino Leadership Award
• Tapestry Award
• Student & Alumni Events
• Executive Recruiters
• Interviewing
• Land the Perfect Job with LinkedIn
• Negotiating
• Elevator Pitch
• Email Best Practices
• Resumes & Cover Letters
• Self-Assessment
• Whitney Birdwell Ball
• Margaret Brooks
• Bryn Panee Burkhart
• Margaret Chan
• Ricki Frankel
• Peter Gandolfo
• Cindy W. Greig
• Natalie Guillen
• Carly Janson
• Sloan Klein
• Sherri Appel Lassila
• Stuart Meyer
• Tanisha Parrish
• Virginia Roberson
• Philippe Taieb
• Michael Takagawa
• Terra Winston
• Johanna Wise
• Debbie Wolter
• Rebecca Zucker
• Complimentary Coaching
• Changing Careers
• Work-Life Integration
• Career Breaks
• Flexible Work
• Join a Board
• D&B Hoovers
• Data Axle (ReferenceUSA)
• EBSCO Business Source
• Global Newsstream
• Market Share Reporter
• ProQuest One Business
• Student Clubs
• Entrepreneurial Students
• Stanford GSB Trust
• Alumni Community
• How to Volunteer
• Springboard Sessions
• Consulting Projects
• 2020 – 2029
• 2010 – 2019
• 2000 – 2009
• 1990 – 1999
• 1980 – 1989
• 1970 – 1979
• 1960 – 1969
• 1950 – 1959
• 1940 – 1949
• Service Areas
• ACT History
• ACT Awards Celebration
• ACT Governance Structure
• Building Leadership for ACT
• Individual Leadership Positions
• Leadership Role Overview
• Purpose of the ACT Management Board
• Contact ACT
• Business & Nonprofit Communities
• Reunion Volunteers
• Ways to Give
• Fiscal Year Report
• Business School Fund Leadership Council
• Planned Giving Options
• Planned Giving Benefits
• Planned Gifts and Reunions
• Legacy Partners
• Giving News & Stories
• Giving Deadlines
• Development Staff
• Submit Class Notes
• Class Secretaries
• Board of Directors
• Health Care
• Sustainability
• Class Takeaways
• All Else Equal: Making Better Decisions
• If/Then: Business, Leadership, Society
• Grit & Growth
• Think Fast, Talk Smart
• Spring 2022
• Spring 2021
• Autumn 2020
• Summer 2020
• Winter 2020
• In the Media
• For Journalists
• DCI Fellows
• Other Auditors
• Academic Calendar & Deadlines
• Course Materials
• Entrepreneurial Resources
• Campus Drive Grove
• Campus Drive Lawn
• CEMEX Auditorium
• King Community Court
• Seawell Family Boardroom
• Stanford GSB Bowl
• Stanford Investors Common
• Town Square
• Vidalakis Courtyard
• Vidalakis Dining Hall
• Catering Services
• Policies & Guidelines
• Reservations
• Contact Faculty Recruiting
• Lecturer Positions
• Postdoctoral Positions
• Accommodations
• CMC-Managed Interviews
• Recruiter-Managed Interviews
• Virtual Interviews
• Campus & Virtual
• Search for Candidates
• Think Globally
• Recruiting Calendar
• Recruiting Policies
• Full-Time Employment
• Summer Employment
• Entrepreneurial Summer Program
• Global Management Immersion Experience
• Social-Purpose Summer Internships
• Process Overview
• Project Types
• Client Eligibility Criteria
• Client Screening
• ACT Leadership
• Social Innovation & Nonprofit Management Resources
• Develop Your Organization’s Talent
• Centers & Initiatives
• Student Fellowships

An official website of the United States government, Department of Justice.

Here's how you know

Official websites use .gov A .gov website belongs to an official government organization in the United States.

Secure .gov websites use HTTPS A lock ( Lock A locked padlock ) or https:// means you’ve safely connected to the .gov website. Share sensitive information only on official, secure websites.

NCJRS Virtual Library

Discretion in criminal justice: the tension between individualization and uniformity, additional details.

755 Riverpoint Drive , West Sacramento , CA 95605 , United States

No download available

Availability, related topics.

• Intellectual Property
• Corporate & Employment Law

What is Discretion in Criminal Justice?

Discretion in the criminal justice system refers to the flexibility and authority granted to law enforcement officers, attorneys, judges, and other key players, allowing them to make decisions based on individual circumstances rather than adhering strictly to the letter of the law. This element of discretion is integral to the functioning of the criminal justice system, providing room for the consideration of unique factors in each case and enabling a more personalized, human approach to justice. Statistics show that discretion plays a major role in the criminal justice process, with almost every decision made by those involved being influenced by some level of discretion.

As you delve deeper into this topic, this article will explore the role of discretion at various stages of criminal proceedings, evaluate its advantages and potential for misuse, and examine statistical evidence reflecting the impact of discretion on crime rates and sentencing outcomes. Read on to better understand the concept of discretion in criminal justice and its implications on society.

Discretion in the context of the criminal justice system can be defined as the power or right conferred upon certain officials, such as police officers, prosecutors, and judges, to act or make decisions based on their own judgment within the confines of the law. This authority allows these officials to consider the unique circumstances of each case, including the offender’s background, the nature of the crime, and societal impacts. The use of discretion, however, is not unfettered and is subject to checks and balances to prevent misuse. It is a critical aspect of the criminal justice system that influences decisions from routine police stops to sentencing in a court of law.

Decision Points in the Criminal Justice Process

Discretion is applied at various stages throughout the criminal justice process, each with its unique set of considerations:

• Law Enforcement: Police officers exercise discretion in numerous ways, such as deciding whether to stop or arrest someone, whether to conduct a search, and whether to issue a warning or a ticket. They may also choose how to handle situations involving mentally ill individuals or minors.
• Prosecution: Prosecutors wield significant discretion in deciding whether to charge a person with a crime, what charges to file, and whether to offer a plea bargain. They often consider factors like the evidence’s strength, the crime’s seriousness, and the defendant’s prior criminal history.
• Judiciary: Judges have discretion in decisions related to bail, evidentiary rulings at trial, sentencing, and granting probation or parole. The judge’s discretion in sentencing can be particularly powerful, impacting the length and type of sentence imposed.
• Corrections: Correctional officials use discretion when determining the level of security in which an offender is placed, decisions about parole, and recommendations for rehabilitative programs.

Each decision point reflects the degree of discretion in the criminal justice system. Although discretion is necessary for flexibility and individualized justice, it also introduces the potential for inconsistency and bias, making the proper oversight and regulation of its use crucial.

Key Actors Exercising Discretion in the Criminal Justice System

In the criminal justice system, several key actors possess and exercise significant discretion, which directly influences the outcomes of cases:

• Police Officers: As the initial point of contact between the public and the criminal justice system, police officers exercise substantial discretion. They determine whether to stop or arrest someone, conduct a search, or issue a warning or a ticket based on their situation assessment.
• Prosecutors: Prosecutors have broad discretionary powers, with the authority to decide whether to charge a person with a crime, what charges to file, and whether to offer a plea bargain.Factors considered include evidence strength, crime seriousness, and defendant’s prior criminal history.
• Judges: The judiciary exercises discretion in determining bail amounts, making evidentiary rulings during trial, sentencing offenders, and granting probation or parole. The effect of a judge’s discretion can significantly alter the length and type of sentence an offender receives.
• Correctional Officials: Those involved in corrections, such as prison wardens and parole officers, also exercise discretion. They make decisions regarding prisoners’ security levels, parole eligibility, and participation in rehabilitative programs.

Each of these key actors plays a significant role in applying discretion within the criminal justice system. The use of discretion allows these individuals to respond to the unique circumstances of each case but also underscores the need for regulatory measures to prevent potential misuse or bias.

Sources of Discretion in the Criminal Justice System

There are several sources from which discretion in the criminal justice system stems:

• Laws: Laws themselves often contain elements of discretion. They may set guidelines or parameters within which decisions must be made. Still, it’s up to the actors in the criminal justice system to interpret and apply these laws in specific cases.
• Policies: Various policies also grant discretion. For instance, police departments may have policies that guide when and how officers should engage in certain actions, like pursuing a suspect or using force. These policies usually provide some latitude for officers to adapt their actions based on their circumstances.
• Individual Judgment: Perhaps the most apparent source of discretion is the individual judgment of the actors in the criminal justice system. Police officers, prosecutors, judges, and correctional officials make choices based on their experiences, biases, ethics, and understanding of the law. This can lead to significant variations in how discretion is exercised.

These sources underline the pervasiveness of discretion in the criminal justice system. While they enable flexibility and adaptation to individual cases, they also raise important questions about consistency and fairness, providing further impetus for the careful scrutiny and regulation of discretionary powers.

How Does Discretion in Criminal Justice Work?

As mentioned earlier, discretion is applied at various stages of the criminal justice process. After a suspect has been arrested and charged with a crime, they may find themselves facing the following decision points where discretion plays a crucial role:

Police Discretion

The power of discretion in law enforcement is substantial, affecting decisions on several key aspects of law enforcement, including arrests, searches and seizures, and charging.

Arrests: Regarding arrests, police officers have to make judgment calls based on the circumstances. Not every violation of the law necessarily leads to an arrest. Officers use their discretion to decide whether an arrest is the most appropriate course of action, considering factors like the seriousness of the crime, the suspect’s demeanor or cooperation, the presence of witnesses, and public safety. For one, the police can arrest a community member if they receive an obstruction of justice charge that must be addressed.

Search and Seizure: Law enforcement officers also have discretion in their decisions to search persons, belongings, or premises. While the Fourth Amendment protects against unreasonable searches and seizures, officers can use their discretion to conduct searches in scenarios where they have probable cause or where they obtain consent or a search warrant. Considering its relevance to the case, the decision to seize property as evidence also lies within an officer’s discretion. For example, an investigation for justice may require collecting drug paraphernalia as evidence.

Charging: Even after an arrest, officers have discretion in deciding which charges, if any, to file against a suspect. They might consider factors like available evidence, the likelihood of conviction, resource constraints, and the suspect’s criminal history. This decision often involves consultation with a prosecutor.

However, it’s important to note that while police discretion is vital for effective law enforcement, it is not unlimited. Officers are expected to exercise their discretion within the boundaries of the law, departmental policies, and ethical guidelines . Their decisions are subject to review and can be challenged in court if they are found to violate individuals’ rights or the principles of justice.

Prosecutorial Discretion

Prosecutors are pivotal figures in the criminal justice system, possessing significant discretion in determining the trajectory of criminal cases. Their choices can profoundly affect the lives of those involved and the overall pursuit of justice.

Determining Charges: Prosecutors effectively decide who will be prosecuted and for what crimes. Upon receiving a case from law enforcement, they review the evidence and decide whether to bring charges and, if so, what those charges should be. This decision is typically influenced by factors such as the available evidence, the severity of the offense, the suspect’s criminal background, and the potential for successful prosecution.

Plea Bargains: Prosecutors also have the authority to negotiate plea bargains . This involves offering the defendant a deal where they agree to plead guilty to a lesser charge or to one of multiple charges in return for a lighter sentence. Plea bargains can expedite the criminal justice process, reduce court workload, and ensure a certain punishment for the defendant. However, the decision to offer a plea deal and the terms thereof are contingent on the prosecutor’s discretion, leading to potential disparities and questions of fairness.

Trial Decisions: During a trial, prosecutors have the discretion to make vital decisions that can shape the outcome. They control the presentation of evidence, select which witnesses to call, and decide how to argue the case. While these decisions must be made within the boundaries of law and professional ethics, they nevertheless demonstrate prosecutors’ wide-ranging discretion. Both restorative and retributive justice can come into play when the court makes its final decision.

The exercise of prosecutorial discretion can result in diverse outcomes, reflecting the complexities of individual cases. However, this power also requires careful monitoring and accountability to ensure it serves the interests of justice and public safety.

Judicial Discretion

Judges also exercise a substantial amount of discretion in the criminal justice system. At various stages of a case, they make decisions that can significantly impact the trajectory of proceedings and the outcome for defendants. Here are some areas in which judges typically exercise their discretionary power:

Bail Decisions: After an arrest, a judge determines whether to release the defendant on bail prior to trial and, if so, sets the bail amount. In making this decision, judges must balance the defendant’s right to freedom before conviction and the need to ensure court appearance and protect public safety. Key considerations might include the seriousness of the alleged offense, the defendant’s previous criminal record, flight risk, and ties to the community.

Evidentiary Rulings: Judges have discretion in rulings on the admissibility of evidence during a trial. They must weigh the probative value of the evidence against potential prejudicial impact. These rulings can significantly influence the direction and outcome of a trial.

Sentencing: Perhaps the most impactful area of judicial discretion is sentencing. Once a defendant has been convicted, the judge determines the appropriate sentence within the parameters set by law. Judges can consider various factors, including the nature and severity of the crime, the defendant’s criminal history, the impact on the victim, and the defendant’s remorse or potential for rehabilitation. Some jurisdictions provide sentencing guidelines, but judges often have leeway to deviate from these based on the case’s specifics.

These roles demonstrate the profound influence of judicial discretion on the administration of justice. While this discretion allows for individualized justice, it also underscores the need for oversight and consistency to prevent arbitrary or biased decision-making. As such, judicial discretion must always be exercised with fairness, impartiality, and a deep respect for the rule of law.

Parole and Probation Discretion

Discretion also plays a critical role in the release and supervision of offenders, specifically in parole and probation decisions.

Parole Decisions: Parole boards , composed of appointed officials, are responsible for deciding whether an incarcerated individual should be granted conditional release before the end of their sentence. The board exercises discretion by considering factors such as the nature of the crime, the offender’s behavior in prison, their rehabilitation progress, and the potential risk to public safety. While they operate within statutory guidelines, parole boards have considerable leeway in determining if and when an inmate is ready for reintegration into society.

Probation Decisions: Probation officers , on the other hand, supervise offenders who are granted probation, which is a period of supervised living in the community instead of incarceration. The discretion here involves determining the level of supervision required and making decisions about violation reports if probation rules are broken. Probation officers can recommend the continuation of probation, adjustment of conditions, or revocation of probation leading to incarceration. They base these decisions on factors such as the offender’s compliance with probation conditions, their progress toward rehabilitation, and the risk they pose to the community.

In both parole and probation, discretion is essential to balance the goal of rehabilitating offenders and protecting public safety. However, as with other areas of the criminal justice system, this discretion must be exercised judiciously to ensure fairness, accountability, and consistency.

Consequences of Discretionary Decisions in the Criminal Justice System

The use of discretion within the criminal justice system, while necessary, has significant consequences that can profoundly influence individuals’ lives and communities. It can lead to disparities and inconsistencies in legal outcomes, with particular implications for marginalized communities.

Sentencing Disparities

Discretion in sentencing, particularly, can result in unequal punishments for similar offenses . Judges, using their personal judgment, may impose divergent sentences based on their perception of the crime, the offender, or the impact on the victim. This can lead to a situation where two individuals convicted of the same crime receive disparate sentences.

Moreover, sentencing disparities can be exacerbated by systemic biases. Research suggests that racial and ethnic minorities often receive harsher sentences than their white counterparts for similar crimes. This reflects a concerning bias in exercising discretion that contributes to overrepresenting certain groups in the prison population.

Impact on Marginalized Communities

The discretionary decisions taken at various stages of the criminal justice process can disproportionately impact marginalized communities. For example, law enforcement discretion in arrests and stops can lead to racial profiling , with people of color disproportionately targeted compared to white individuals.

Similarly, prosecutorial discretion in charging and plea bargaining can contribute to disparities in case outcomes. Studies have shown that marginalized groups are less likely to receive favorable plea deals, leading to more severe charges and longer sentences.

Furthermore, the discretion exercised by parole boards and probation officers can impact reentry outcomes. Bias in these decisions can lead to stricter conditions or premature termination of parole or probation for minority offenders, limiting their opportunities for successful reintegration into society.

These consequences underscore the importance of monitoring and regulating discretion within the criminal justice system. While discretion allows for flexibility and individualized justice, it must be tempered by fairness, equality, and non-discrimination principles to ensure a truly just legal system.

Bottom Line

Discretion is a crucial aspect of the criminal justice system, with far-reaching effects on the lives of those involved. From law enforcement and prosecutorial decisions to judicial and parole/probation discretion, officials are granted significant leeway in making choices that can determine an individual’s fate. While this discretion allows for a tailored approach to justice, it must be exercised with caution and accountability to prevent abuses and uphold the principles of fairness, equality, and the rule of law.

So, each person involved in the criminal justice system must understand their responsibilities and limitations regarding discretion to ensure a fair and just legal process. As a community member, it’s important to advocate for accountability and transparency in exercising discretion at all levels of the criminal justice system. Everyone must strive towards an equitable and inclusive system where discretionary decisions are made with integrity and guided by principles of justice for all. Everyone is responsible for ensuring that discretion is used justly and ethically, ultimately leading to a fairer and more effective criminal justice system for everyone involved.

About The Author

Michael Anderson

Related posts.

Formats for Transcribed Court Reports: What Are Your Options?

Criminal Justice Reforms Set to Ease Prison Overpopulation

Personal Injury Lawsuit: Are Parents Responsible for their Children’s Negligent Acts?