The option in the criminal justice system to measure discretion

Discretion and the Criminal Justice System


This case study empirically examines the option in the criminal justice system to measure the discretion exercised between the prosecution and the criminal defendant. The purpose of this paper is to explain the relationship between discretion and the criminal justice system (Judges). Also, this research demonstrates details when professional discretion crosses ethical boundaries.

Criminal justice systems often prompt ethical dilemmas that generate vivid arguments in societies today. Discrimination and the deceptive tactics used by judges in their criminal investigations, such as the use of hidden surveillance cameras and undercover police services, often overstep the authority boundaries, thus prompting ethical dilemmas.

The criminal justice system’s discretion and prosecution were examined under personal and social causes, together with the criminal justice process. The professional preference in the criminal justice system and the ethical boundaries were assessed.


Discretion is the manner of speech to prevent some disrespectful incidents, such as discussing certain confidential information in public. For several years, questions have been posed regarding the position of power in the judicial system – the degree to which the discretionary decision of the prosecutor decides what should be accomplished about the perpetrator, complainant, or prisoner. The justification for this worry was the belief that people’s lives, rights, and well-being rely on unfair, unjust, or unethical actions. Discretion in the criminal justice system is often carried out by the judges, police, prosecutor, correction officers, and corrections officers. It is the self- determination for the criminal justice professional to identify the better action to be taken at a particular time. Discretion often diminishes the power of the criminal justice system to minimize crime by frequently softening the impact of judicial penalties. The principal targets of this critique are the court actions and the sentence judgments of the judges in the overwhelming number of situations where the plea bargains decide the outcome. Arguments have been made against judges who release dangerous criminals too early and police for being too soft on drug cartels and users. Relying excessively on professional discretion has massive impacts. Excessive caution hides malfunctions in the criminal justice system and prevents uncomfortable moral decisions by allowing the impression that they do not have to be made. It obscures the need for adequate services and enables the abuse of existing resources more possible(Bushway & Forst, 2011). And it encourages the argument that we know better than we do, contributing to wrong judgment.

However, professional discretion can cross ethical boundaries, thus creating strong arguments. Pre-trial release in most jurisdictions is not standardized, therefore giving judges the power to make decisions without having to explain to anyone on their judgment. Criminals that are considered to be harmful have been released into society through bail set by magistrates(“7.1 the ethics surrounding discretion – Ethics in law enforcement,” 2015). On the other hand, white criminals are released from prison, while black suspects are retained over the same criminal act.  Such actions raise questions on whether the provision of bail should be abolished and if it is possible for harmful suspects should be held in prison while they wait until proven guilty. There are also poor citizens locked away in the jails, not because they are a danger to society, simply because they cannot afford to pay their bail bond. Besides, the judge might not care enough about them to determine how dangerous the suspect is.

This paper aims to identify when professional discretion crosses ethical boundaries. Also, the fundamental purpose of the paper is to examine potential benefits from the reduction of the discretionary powers of officials, the forms that such a reduction could take, mechanisms that might contribute to these adjustments. Objective suggested is a framework where decisions are made with the highest level of authority and with the most considerable degree of accountability practicable due to the complexity of judgment and the condition through which a decision is made.

When Use of Professional Discretion Cross Ethical Boundaries (judges)

Discretion is used in the sense of law enforcement to apply to the right to agree about the appropriate measures to be done to handle the workload and to participate actively in events that arise. While various degrees of control are granted to specific law enforcement officials, equal flexibility is provided to all law enforcement officers, irrespective of their position or degree of seniority. It allows us the ability to make tactical choices, such as communicating about, interviewing, prosecuting, or punishing us efficiently. It is also essential that law enforcement officers follow strong moral principles in order to ensure that their actions are reasonable and exempt from discrimination.

According to Weaver (2014),when engaging in administrative activities, a judge is not allowed to:

  • Participate in activities that might result in disqualification.
  • Engage in activities considered coercive.
  • Involve in activities that might influence judgment.
  • Practice ways that may interfere with judicial duties.

The unethical misconducts are influenced by greed, the pressure to convict, and laziness.

  1. Exercising Discrimination

According to Bushway & Forst (2011), judges cross ethical boundaries by using discretion power handed to them to discriminate against specific individuals in society. The study carried out indicates that judicial power grants permission to assess the case and determine how to discipline the criminal and the form and severity of the punishment. It provides space for prejudice and is also immoral because judges are required to uphold the rule when maintaining equality. All in society should have equal opportunities and be handled equally. Conversely, flexibility provides space for judges to handle criminals differently based on their color, gender, sex, religion, and background, among others. The judiciary is biased against ethnic communities. Cultural and religious discrimination is one of the several instances of how discretion is employed in a racist way. Some magistrates conclude that certain types of individuals are more prone to commit such offenses, which sometimes cloud their decision. Discretion should only be defined as actions made under legitimate jurisdiction rather than decisions taken on unlawful grounds. In addition, persons within an organization must have the legislative right to make judgments and must act under the boundaries appropriate to those within an agency or occupation.

  1. Use of inappropriate Precedent

Choosing a precedent allows the judge to use flexibility to establish the most suitable pattern. In some instances, the judge may want to use a past that is identical to the present case.  Research conducted explains that the prosecutor uses the decision of the previous example to decide on the present case. The study indicates that a precedent is select based on factors such as cultural beliefs, timing, and religious beliefs of the defendants and the accused. Also, the judiciary must assess the cases to ensure they are similar to those facts documented. Some judges misuse the discretion by selecting a precedent whose circumstances are different from the current situation to avoid the long-ruling process, hence resulting in the unfair ruling. Thus considered as abuse of precedent since the judge does not evaluate the required precedent’s judgment carefully.

  • Use of Questionable Tactics

Questionable tactics such as sexual harassment for the favorable verdict is considered crossing of ethical boundaries. Judges are known to ask for a sexual favor from lawyers, defendants, and the accused to rule in their favor. An interview with one of the victim indicates that, if a person does not give in to the demands, the judge retaliates, hence a harsh verdict is issued against them (Davis,2006)  In other instances, judges ask for bribes to influence the ruling verdict. If the victim doesn’t give in to demands, they face retaliation. Such practices are perceived to be coercive, and judges are not allowed to participate in such activities; thus, they should be criminally prosecuted.

Endorsing Illegal Activities

The judiciary works closely with the community they serve; hence they are likely to create a relationship with community members. However, they use their discretion to allow members of the community to conduct illegal and unlawful activities. For example, judges releasing criminals involved in activities like selling or using addictive drugs ( marijuana and cocaine) through bail is unlawful.It contributes to the increase of other unlawful practices such as theft, rape, and murderas much as there is a war on drugs; the United States gets most of its money from imported drugs. The harsh punishments imposed on drug cartels discourage such practices. However, the judiciary engages in unethical relations with such criminals for personal gain. The research conducted shows that, in many instances, judges offer bail to the criminals for a certain percentage of the business. Judges’ involvement in such activities contributes to an increase in illegal practices in societies. The government should, therefore, ensure illegal activities are banned within the communities.

  1. Corruption

Corruption in criminal courts stems from misuse of power and authority, as well as poor honesty. Therefore, it may be claimed that the awarding of unilateral authority to the judiciary will contribute to misconduct. Through utilizing control, judges may actively disregard the rights of the accused parties to their prosecution. Several instances, people have complained overcorrupt judges. For example, in 2009, a judge was bribed $2.6 million to shut down a juvenile run by the country in favor of private juvenile detention (Underhill,2016).When a judge accepts bribery to have influence over a case, it is considered a breach of ethical boundaries.  Judges should, therefore, pass judgment without any external influence by providing a transparent criminal system.


Discretion plays an essential function in every stable community, as it promotes social progress. Judges depend on their choice to make judgments that impact not only them but also the lives and rights of people of the neighborhoods they represent. Following that, flexibility cannot be lost, even with the threats that it presents. Professional discretion can cross ethical boundaries, thus creating strong arguments. Pre-trial release in most jurisdictions is not standardized, therefore giving judges the power to make decisions without having to explain to anyone on their judgment. Discretion, specifically in the judiciary, is essential to court operation and to a partnership between the public and criminal justice departments. Nonetheless, while productivity is vital in many public institutions, there is a danger judiciary may lose their direction if they encourage productivity in violation of legal and lawful public safety actions and if people are refused justice. Discretion cannot be removed, even with the threats that it presents. Nonetheless, measures to combat potentially inappropriate use of authority can be placed in motion and enforced to ensure that they are only utilized for the benefit.

People go to court to seek justice in accordance with the rule of law. It is, therefore, ethical for judges to make discrete decisions by settling cases brought to them fairly without influence by external forces. Courts should ensure that the suspected criminals receive a fair trial before ruling.   Judges should not violate the law by acting upon self-interest. For example, Criminals that are considered to be harmful have been released into society through bail set by judges. The judiciary should be working with the public to create better and safe societies. Afterall, a negative attitude towards the criminal justice department ensures a high rate of criminal activities such as drug abuse, rape, theft, and murder. Citizens want a criminal justice system without discrimination, corruption, and biasness. Judiciary job is to serve justice despite a person’s background, occupation, and cultural background.  Although the scope of authority is among the leading factors contributing to misconduct and exploitation of control, the amount of power granted to judges should be limited. Justice should prevail equally with discretion, whether in the private or public sector.


Davis, A. J. (2006). The legal profession’s failure to discipline unethical prosecutors. Irv issues. com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=12&cad=rja&uact=8&ved=2ahUKEwju9O7Nue3oAhVIqxoKHTAmDzQQFjALegQIBBAB&”>

Underhill, J. D. (2016). Bribery on the bench: a look at judicial corruption. Association of certified fraud examiner.

Weaver, J. D. (2014). Overstepping ethical boundaries? Limitations on state efforts to provide access to justice in family courts. FLASH Archive.

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