Criminology

The use of discretion in the criminal justice system stems from a need and desire to be as fair as possible on an individual basis to avoid stereotyping fundamentals.  This is due to the foundation of laws that exist were created in a time gone by and are not as accurately correct for the society of today.   To remedy this, the criminal justice system has implemented the use of discretion in bringing disciplinary actions associated with crime into a fitting punishment that correlates with the times.

The Path of Discretion
The realization that all crimes committed differ in the reasoning of why and how has become a factor in the decision of how one will pay for the crime that was committed.  For example, a death occurs at the hands of an individual.  This is a homicide.  A murder has been committed and is punishable under the law.  Before the practice of discretion was in use, it would be a pretty cut and dry charge.

 Discretion has allowed the creation of levels of crimes. These levels are pertinent to the facts therein.  It all starts with the discretion of the arresting officer, who takes information in making a report and describes the circumstances according to the facts as he sees them.

The questions he will ask will be determined by the training and professionalism extended in relating the offense to the levels of the crime afforded by law.  This discretionary pattern will continue throughout the judicial system as the case proceeds and is inclusive of the prosecuting attorney and judge in alliance with the facts as they see them under the law.  Where discretion is not used is with a jury itself.  Presented with the offense their decision based on the facts of the case, will correlate with the law in its black and white significance.   Once the jury renders a verdict, the Judge at his discretion will hand down a sentence using discretion pertinent to the crime committed, how it was committed and of the individuals character.
 
Examples of How Discretion is used
Youth Justice is a great example of how discretion affects the criminal justice system.  At the discretion of concerned citizens, certain organizations were formed which called for the separation of juveniles from adults regarding the judicial system.  Jerrom (2008) tells us in the 1990s there was a huge increase of children who became active in the Justice System.  In 1998, redirection was given to the system and the Crime and Disorder Act was enacted, hence the birth of the Youth Justice System.  It underwent a lot of scrutiny from parents and legal departments alike while it became established.  It has a board of 12 members, who answer to the Ministry of Justice and the Department of Children.
It was at the discretion of the board to look for ways of improvement to the crime and disorder act.  One improvement was to seek professional interaction in recognizing causes for criminal activity performed by youth offenders and to counteract victimization that occurs during detention.  Health professionals countered victimization in detecting potential abusers in an effort to shield youths and to build trust for them in the system.  In this manner, redirection was possible as youth in retaining their youthful resilience were more open and accepting of treatment.  They can then resist negative peer pressure, and develop a positive sense of their own potential and future.

Sentencing also carries discretionary weight.  Judges listen to cases on an individual basis.  The professional demeanor and expertise they hold enables them to make decisions in sentencing at their discretion relevant to the case, the defendant, the verdict of the jury and the limits within the law.  Taking all of this into account a defendants sentencing is according to that which the judge deems fit in his discretion of not only the crime, but the circumstance and persons involved as well.  Key aspects as of late indicate that sentencing reformers believe that judges use too much discretion in handing down sentences.  Therefore, in this debate, somewhere along the lines written sentencing rules created as guidelines to be followed by judges, somehow were accessed by prosecutors, thus the tide has turned to influential factors addressing the transition of sentencing to that of prosecutors.  This defeated the directive, which was simply to make criminal sentencing subject to law (Stith, 2008).

Parole is adjudicatory to a parole board without the presence or participation of the justice system.  The responsibility of the parole board is to set the actual time of incarceration for a convicted person within 6 months (Gorton, 1978).  It is at the discretion of the parole board made up of persons with experience in the fields of sociality, law, or medicine inclined backgrounds, in the ability to determine the potential of would be parolees being mainstreamed back into society. Their decisions based on the remorseful acceptance of responsibility for the crimes as voiced by those seeking parole, are a result of the credibility and time served so far for the offense.  It is at the discretion of the parole board to either approve or deny parole as they see fit.

The Advantages of Discretion
The advantages of having discretion within the judicial system, is that it fills the gaps of laws built on black and white principles, therefore not realistic to life events.  Historically crimes committed by persons carried much longer sentences, and were harsh and at times considered as inhumane in their deliverance.  The 1600s reflects the state of homelessness as a crime.  Being homeless resulted in inhumane treatment of flogging or even executed, and the labeling of a vagabond if discovered.

The law of homelessness as a crime has since then been changed.  This change is a result of discretionary action.  It was at the discretion of those who did not like this law and wanted it changed.  Today, the judgment of homelessness is dependent on an individuals circumstances.  Persons are more likely to be empathetic to a woman with children versus people without, or older persons viewed as victims who were perhaps let down by the system.  Many charitable groups now support and assist homeless persons to regain footing into society (Morrell-Bellai et al, 2000).

Changing of laws is a strong point of the advantages and successes of the use of discretion.  Discretion is the making of a decision or choice after learning all the facts based on individual perception.  When more than one person is involved and shares this perception, discretion is a collective group effort and can make the changing of laws possible.  Other advantages of discretion in the justice system is that the practice is well known to occur and therefore states set limits of allowance in an attempt to keep balance of its use.  Some states may allow wide discretion to judges, and minimal discretion to police officers.  It all depends on the guidelines pursuant to that states laws (Gelsthorpe et al, 2003).

The Disadvantages of Discretion
The disadvantages of discretion, is that there is not a clear way to monitor its use.  The red tape of government actions gives discretionary practices a lot of space to work with.  The misuse of discretion would take a considerable time to be noticed, but once it is, measures are taken to right the imbalance.  There is continual gauging of the use of discretion in criminal justice.  The laws of the country enacted on a premise that did not take into account the extreme of longevity beyond its likely scope.  This left for a deep chasm of flexibility in connecting the laws of old with the times of today.  To fill the gaps and make connections complete, the use of discretion was born.  Drawbacks are that it has the potential for getting out of control, and unless closely monitored it has and will (Robinson, 2005).

Brasswell  Lafollette (2008) advise that associations to discretion is the concern that decisions are made that are not congruent with laws and are based on evasiveness and individual and corporate greed.  The pursuit of social peace is threatened by a system that is functioning out of control and discretion in the criminal justice system needs to be evaluated in giving meaning to social values and rendering results that were intended at the onset.

My Opinion on Discretion in the Justice System    
My opinion is that I would rather have the practice of discretion available rather than not.  Laws are a very scary thing and were discretion not used in aligning laws to specifics like an era, person, place, or thing, justice would not be a reality to look forward too.  There are downfalls to everything we undertake in life.  The reason for this is that we have to take risks in order to learn.  Therefore, first attempts may not deliver outcomes that match the expectations, but they do provide insight on what to do next to get closer or achieve goals.

Such is the case with discretion.  The purpose of its use is to seek a foundation that is par for the course.  It is to keep up to date with eyes wide open in the assessment and evaluation of crimes.  It is the use of logic in determining what, within the limits of the law, warrant follow through, or can be provided a warning status.  It is prevalent through all divisions of the criminal justice system, and in that capacity, it remains consistent.

Although discretion use is not perfect by all who use it in decision making without it I have a feeling we would be worse off.  Time and change bring about new processes always striving for improvement.  The purpose of life calls for constant improvement to processes, and the criminal justice system is at the front of the receiving line.