Utilities, railroads, and highways formed our nation and were a direct result of the affirmation of the Fifth Amendment and eminent domain. Cesar Lombroso, of the Positivist School of criminological thought, was an Italian army prison physician who was best known for theories on criminology and its biological origins. “The police are typically the first contact that young victims and delinquents have with the juvenile justice system. Unfairness that may exist is rare and aberrant, not a systematic feature of the criminal justice system. Punishment should be a deterrent imposed to prevent recidivism, not an act of retribution. While administrators are often bound by bureaucratic regulations, law enforcement professionals at lower levels of the organization possess great leeway in the manner in which they perform their jobs. Discretion is exercised throughout all levels of policing. According to McGregor (Kleinig,1996), discretion can only be interpreted as those decisions that are made with lawful authority rather than decisions made for illegal reasons. The most widely cited studyon police departmental styles was conducted by James Q. Wilson (1968). Beccaria’s principles have been incorporated into the French penal code of 1791 and influences leaders such as Catherine the Great and Frederick the Great. The debate, however, surrounds the relative limits to this discretion. The effects of zoning regulations and eminent domain have been drastic and helped shape our society. Discretion in policing and the court system is a necessary and unavoidable facet of criminal justice work, yet it is still very controversial. He found th… Top writers. Prosecutors exercise unfettered discretion, deciding who to charge with a crime, what charges to file, when to drop the charges, whether or not to plea bargain, and how to allocate prosecutorial resources. He concluded that the majority of offenders, 90%, had committed crimes due to atavistic influences. He believed the modern criminal was incapable of conforming to rules and expectations of society due to an undeveloped brain. 3 Memorandum of June 21, 1977, from Mark Moore to James Discretion in Criminal Justice Systems. Judges are responsible for issuing warrants, supervising pretrial activity, presiding over hearings and trial, deciding guilt or innocence in some cases, and passing sentence on those convicted. The punishment should closely follow the commission of a crime so the offender connects the punishment with the wrongfulness of the crime. Criminal procedure, or procedural law, puts substantive criminal law in motion. Discretion is "an authority conferred by law to act in certain conditions problem of the individual special case," New York University Law Review Lombroso claimed to have found a variety of bodily features predictive of criminal behavior. To export a reference to this article please select a referencing stye below: If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! Criminal Justice Reform: Judge’s Discretion in Sentencing Is Far Broader Than What Most Think – and Reeks of Lack of Due Process! Do you have a 2:1 degree or higher? Discretion is more formally defined as “the authority to make a decision between two or more choices” (Pollock, 2014, p. 2). general terms, criminal … Beccaria stated, “Laws are the conditions under which independent and isolated men unite to form a society.” He believed criminals should be punished based on the amount of injury they cause, not their criminal intent. employed at the local level. Beccaria believed the punishment should be severe enough to outweigh the personal benefits derived from committing the crime. Reference this. Beccaria’s ideas were developed during the Classical School; Lombroso’s theories were developed during the Positivist School of thought while Durkheim’s were developed through sociology idealisms. Correctional officers give recommendations to parole officers when a parole hearing arises. Most justice personnel are protection is primarily a function of cities and towns. Discretion exists when courtroom actors (police officers, attorneys, judges) have the flexibility to choose an appropriate response to a situation. They must decide guilt or innocence and issue sentencing based on judicial discretion or sentencing guidelines. Although Lombroso’s biological studies on atavism have been discredited by many in the field, perhaps enhanced scientific methods of studying brain behavior can attribute criminal behavior to certain physiological traits. Beccaria’s ideas were developed during the Classical School; Lombroso’s theories were developed during the Positivist School of thought while Durkheim’s were developed through sociology idealisms. That means that fundamental rights provided by the Bill of Rights were only guaranteed to those prosecuted in a federal court. It is a part of decisionmaking in all government The prosecutor’s job is to seek justice, not conviction. Discretion is a key part in the criminal justice process. ", To Criminal Justice System flowchart & table of contents. Words are not perfect as numbers; they can often be interpreted to have more than one meaning. An example of a proper exercise of legislative discretion is to make stalking a crime and to make that crime punishable by fines or imprisonment. The five rights that have been applicable to the states by means of the Due Process Clause of the Fourteenth Amendment are: indictment by a grand jury for a capital or major crime, prohibition of double jeopardy, prohibition on self-incrimination, a person cannot be deprived of life, liberty, or property, and prohibition on the taking of private property by the government without just compensation. Perhaps the most influential decision under the Fifth Amendment was Miranda v. Arizona (1966). Cyndi Banks, author of Criminal Justice Ethics: Theory and Practice, states Durkheim’s focus was not on the effectiveness of punishment as a means to crime control, but as a way of retaining social solidarity through the affirmation of societal values. “The essence of monocracy, the rule of law, is limitation of the discretion of officials, and providing a process by which errors or abuse of discretion can be corrected.” (www.constitution.org). For example, some State judges have wide discretion in the type of The Miranda decision made the reading of “Miranda Rights” a part of routine police procedure to ensure suspects were informed of their rights. The role of discretion in the criminal justice system outlines what may form an aggravating or mitigating situation. Therefore, many cases may be issued a nolle prosequi, or downgraded to a lesser charge. Durkheim viewed the function of punishment as a “passionate reaction” to crime. Get Your Custom Essay on Discretion in the Criminal Justice System Just from $13,9/Page Get custom paper Although it is common throughout the criminal justice system, some authoritative figures don’t use discretion in a way to guide punishments; they stay in accordance with established guidelines. Substantive law defines the legal pertinence between two parties such as person vs. person or person vs. state. The purpose of this publication was to communicate his observations on the laws and justice system of his time. 2 Wayne R. LaFave, Arrest: The decision to take a suspect into Once a sentence has been imposed, correctional and probationary officers are responsible for overseeing and monitoring the recommended sentence. Elements of the criminal justice system such as law enforcement officers, prosecuting attorneys, judges, correction officers and probation officers are faced with discretionary decision making throughout the criminal justice process. Police Prof Evander. Cesare Beccaria, Cesar Lombroso, and Emile Durkheim developed their own theories of criminological behavior during specific time periods. An effective and workable criminal justice system relies on police discretion. His Essay on Crimes and Punishment is claimed to have influenced the U.S. Constitution and Bill of Rights. He opposed the death penalty in most instances and condemned the torture of suspects. The type of information and future cases brought to the State Attorney as a result of the investigation will determine if the substantial assistance requirement has been fulfilled. it keeps the judiciary and defense attorneys from becoming corrupt. The limits of discretion vary from jurisdiction to jurisdiction. Probation officers may use discretion when imposing a violation or recommending early release. Free resources to assist you with your legal studies! Procedural law compromises the means by which substantive law is administered. This report has not been published by the Department. The discretion of legislatures is also limited by the U. S. and state constitutions. Furthermore, the individuals within an institution must have lawful authority to make the decisions and must operate under the constraints acceptable to others within the organization or profession. Elements of the criminal justice system such as law enforcement officers, prosecuting attorneys, judges, correction officers and probation officers are faced with discretionary decision making throughout the criminal justice process. Prosecutors may offer a variety of plea agreements including suspended sentences, probation, or substantial assistance. Take a look at some weird laws from around the world! Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. For example, procedural law incorporates the following questions: the conditions a person may be arrested, when the police can search, when does the accused have the chance to assert a defense, and how long before the accused is granted a trial. ensure the proper exercise of police discretion. "The police are typically the first contact that young victims and delinquents have with the juvenile justice system. In fact discretion can be found in all stages of the criminal justice system. In recent years other States have sought to limit Following the decision to arrest, the case is forwarded to the prosecuting attorney for a filing decision. The defendant will often plea to the highest charge and maximum sentence in exchange for full cooperation with providing law enforcement with criminal information. For instance, since crimina I conduct is described in . Lombroso claimed criminaloids, or occasional criminals, were drawn into crime by environmental influences and only exhibited some degree of atavism. Lombroso was a strict positivist who explained criminological phenomena in quantitative terms that could be measured and ultimately controlled. The limits of discretion vary from State to State and locality to Within the criminal justice system, the word discretion is most often used to refer to the authority and power to make decisions while drawing upon one’s own experience without immediate oversight but within the confines of the law and organizational/agency regulations. Beccaria stated, “Punishment should fit the crime.” He believed theft should be punished with fines, personal injury with physical punishment, and serious crimes against the state with the death penalty. is often delegated to professionals. In recent news, the Arizona Senate Bill 1070, has made it possible for law enforcement to stop any suspected illegal immigrants and to demand the proper registration documents. The cultural and social impact of this bill has been a nationwide debate since its inception. Vorenberg, "Some abstract notes on the issue of discretion. This document is a research report submitted to the U.S. Department of Justice. 3rd Jul 2019 limits of discretion vary from jurisdiction to jurisdiction. Within the highest levels in the chain of command, the police discretion is used for example in deciding to target certain areas of crime with the use of initiatives or policies, possibly through the … Police departments have their own styles thatreflect the organizational culture of the department. Discretion is defined as the power or right to decide or act according to one’s own judgment. There is a middle path. The Role of Discretion in the Criminal Justice System 257 discretion can enable judges, prosecutors, defense attorneys, and/or juries to implement sentencing policies in line with their own views, even if these policies conflict with formal law. Discretion of this sort is frequently vilified as the Administrative Law The However, the punishment exercised on criminals cannot vary from the standards established by the United States. The five rights are derived from the Fifth Amendment and were therefore only applicable to the federal government. Sociologist Emile Durkheim explored the idea of a community as a functional whole that translates the quality of life for its members. He firmly believed criminals control their own behavior and that punishment is necessary as a deterrent. For example, a traffic violation, the police officer may simply issue a warning. systems from mental health to education, as well as criminal justice. He theorized, “A criminal is an atavistic being who reproduces the ferocious instincts of primitive humanity.” This theory was outlined in his classic 1876 work, L’uomo Delinguente. It is a part of decisionmaking in all government systems from mental health to education, as well as criminal justice. Examples of selective observation in criminal justice Pages: 5 (1132 words) The Differences Between Criminology and Criminal Justice Pages: 2 (353 words) Give an example of a contemporary issue currently facing the criminal justice system Pages: 2 (358 words) Prosecutorial discretion is an important part of the criminal justice process because: it causes the system to move more slowly, but more fairly. Beccaria, Lombroso, and Durkheim each contributed to the field of criminology. The defendant was not entitled to those protections in state court unless a statutory provision was in place. Arizona v. Gant (2009) held that police may search a vehicle if it contains evidence of the offense of arrest. The process begins with the decision to arrest by a law enforcement officer in the field. Durkheim argued that people behave according to social rules, customs and traditions that collectively form a particular society. that is criminal and all that is not.2 Therefore, persons charged with the day-to-day response to crime are expected to exercise their own For instance, possession of oxycodone is a felony in the State of Florida, yet a prosecutor may change the charge to possession of a prescription medication without a prescription, a misdemeanor. Serving as an "interim report" on what does and does not work in the system, Taming the System concludes that not only has the effort to control discretion been a unifying theme in criminal justice history, but that there have actually been some successes, resulting … level of training and orientation, which guide officials in making Therefore, the introduction of the Fourteenth Amendment required the states to afford due process whenever depriving a person of life, liberty, or property. Because of the power that police have to deprive citizens of their life and liberties, the role of discretion in policing is of great concern to scholars and th… These components of the judicial system do not have total discretion; they must act within the admittedly very broad boundaries of the principle of legality. This was in sharp contrast to New York v. Belton (1981) that allowed officers to search every vehicle incident to arrest. In the State of Florida, substantial assistance is an agreement between the State, the defendant, the judge, and the assigned law enforcement officer to provide assistance with criminal information in lieu of a prison sentence. This is not an example of the work produced by our Law Essay Writing Service. The application of discretion is evident throughout the criminal justice field. For instance, criminal law defines what constitutes a crime. States, however, are free to abolish grand juries and may use preliminary hearings as a substitute. Verified writer. In misdemeanor cases, judges are often the intermediate between the prosecutor and state attorney. As with adults, law enforcement serves as the gatekeeper to the justice system. Discretion is defined as the power or right to decide or act according to one’s own judgment. Focusing on police discretion to arrest and the prosecutor's discretion to charge, the author notes that justified discretion is that which ameliorates the harshness of the literal criminal law. sentence they may impose. Prior to the adoption of the Fourteenth Amendment, the Bill of Rights Amendments were interpreted as restricting the authority of the national government. Discretion in policing and the court system is a necessary and unavoidable facet of criminal justice work, yet it is still very controversial. I Department of Justice. Prosecutorial Discretion As an elected or appointed official, the prosecutor is the most powerful official in the criminal justice system. Born from the Classical School of criminological though was Italian Cesare Beccaria who first published his Essay on Crimes and Punishment in 1764. Substantive and procedural law and executed each day within the legal framework of our society. Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of LawTeacher.net. For instance, a person arrested for driving on a suspended license, may not have their vehicle subjected to a search. As one of the five rights afforded by the Due Process Clause, the prohibition of the taking of property without just compensation has had profound affects on our nation’s infrastructure. Instructor: Melanie Norwood Melanie has taught several criminal justice courses, holds an MS in Sociology concentrating in Criminal Justice & is completing her Ph.D. in Criminology, Law & Justice. As substantive law, criminal law establishes what conduct is prohibited and the type of punishment a violator would be subject. Company Registration No: 4964706. decisions. Discretion exists when courtroom actors (police officers, attorneys, judges) have the flexibility to choose an appropriate response to a situation. throughout the government. For example, discretion should be used for a first time offender for speeding but should not be used for a first time offender of rape. Law enforcement, out of necessity, must engage in selective enforcement regarding the enforcement of laws and must choose from a variety of alternative actions in order to resolve the situation. A recent United States Supreme Court decision concerning procedural law drastically affected law enforcement procedures. The victim, has the discretion to use self defense and to report the crime given the opportunity. considered judgment and conscience. Procedural law therefore drastically effects how substantive law is enforced. This ensured suspects that once custodial questioning began, they were informed of their rights, and subsequently had the right to silence and counsel to protect themselves against self-incrimination. His Essay on Crimes and Punishment further distinguished between his two types of proof: perfect proof and imperfect proof. This theory closely resembles today’s proof beyond a reasonable doubt. 1 Discretion is exercised throughout the government. (1960) 35:925, 926. With the liberal movement, Beccaria’s theories may be sharply criticized by different groups that may consider certain criminal offenses to be less severe than another particular group’s opinion of the offense. Supreme Court Justice Black argued that the entire Bill of Rights is incorporated by the Fourteenth Amendment and therefore may be asserted by defendants in state and federal court. You can view samples of our professional work here. Durkheim’s theory can be compared to today’s call for getting tough on crime. Parole officers face similar discretionary decisions when recommending or denying incarcerated defendants early release or violating there conditional release agreements. It defines the procedures necessary to bring criminals to justice, starting with police investigation and continuing throughout the criminal proceedings. Disparity in the Criminal Justice System. The Miranda case was decided under the Fifth Amendment which is applicable to the states under the Fourteenth Amendment. Substantive law is written or statutory law that defines rights and obligations of those subject to the law. 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. January 15, 2020 I always find it interesting when people express their displeasure over some aspect of the U.S. criminal justice system – or its judicial system – that they think is inappropriate or unfair. Furthermore, the Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny a person the equal protection of the law. Procedural law is designed to ensure fairness in the application of the Due Process Clause of the Fourteenth Amendment. Once the case is forwarded to the prosecuting attorney, multifarious avenues of discretionary decisions are available to resolve a case. He theorized that society formed a “conscience collective” and believed crimes violate that conscience collective to form a punitive reaction by the particular society. Beccaria believed the jury should be compromised of peers of the victim and of the accused. The responsibility Looking for a flexible role? Points of view in this report are those of the authors and do not necessarily represent the official position or policies of the U.S. it prevents rigid implementation of criminal law. Disclaimer: This work has been submitted by a law student. Beccaria further distinguished between three types of crimes: those that threaten state security, those that injure citizens and property, and those that run contrary to the social order. Officers are obligated to follow state statute and agency policy and procedure when making these decisions. The three examples cited above illustrate the disparity in the United States criminal justice system. the judges discretion in sentencing by passing mandatory sentencing laws Copyright © 2003 - 2020 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. Discretion, in its simplest terms, is when one makes an informed choice between more than two options. Each of their theories resonate is current criminological studies and many of their thoughts can be compared to current issues. Very few crimes are under exclusive Federal jurisdiction. Most state legislatures are empowered by similar language from their state constitution. they cannot anticipate the range of circumstances surrounding each crime, This definition is useful as it allows discretion to be considered in a legal context rather than only when police officers operate illegal… Cesare Beccaria, Cesar Lombroso, and Emile Durkheim developed their own theories of criminological behavior during specific time periods. judgment within limits set by law. Although their theories are well over 100 years old, they can be compared and contrasted to current criminological thought. 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. Professionalism requires a minimum His ideas were considered progressive in his time. Officers must use discretion when deciding to enforce the law when certain situations arise. Criminal justice agencies were clearly impacted by this decision. In order to effectively process cases through the criminal justice system, discretion is an important tool for police, prosecutors, judges, and correctional officials. As with adults, law enforcement serves as the gatekeeper to the justice system. Corrections is A crime is classified as an act that violates the federal laws of America. Each of their theories resonate is current criminological studies and many of their thoughts can be compared to current issues. Beccaria believed torture would subject potentially weak suspects to incriminate themselves before they could be brought before a court of law. Therefore full enforcement of laws is impossible, making discretion a fundamental necessity of the criminal justice process. To ensure that discretion is exercised responsibly, government authority primarily a function of State governments. Beccaria believed crime prevention was more important than revenge. or situations in accordance with an official's or an official agency's own to respond to most crime rests with State and local governments. Furthermore, correctional officers may use discretion when choosing whether and inmate should be part of a general prison population, or recommended for solitary confinement due to behavioral issues. 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