Essay about Law and Unlimited Discretion

Submitted By John-Stephens
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Pages: 8
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The Criminal Justice Process Explained
Student: John Stevens
American Public University System
Instructor: Professor Clark
June 10th, 2014

Introduction
The criminal justice system is typically made of the judges, correctional services, police, prosecutors and juries. In the contemporary world, social control and order would be unattainable without the criminal justice institutions. The criminal justice systems, practices and institutions are usually government owned and they bring social control by deterring crime, mitigating crime, and sanctioning offenders, disseminating penalties and rehabilitating habitual law offenders. In most jurisdictions, the accused are protected by the law (Barkan & Bryjak 2011). In addition, the law protects the accused against abuse of power by investigatory, prosecution and correction bodies since laxity may lead to victimization of suspects. These protections are varied, limited and ineffective in some jurisdictions. However, due to complexities of the law, there comes moments when the jury has to exercise the powers of his position to influence the outcome of cases. The ability of a criminal justice official to make a responsible choice about a case and based on his understanding of the law is referred to as discretion. In these cases, judges, police, prosecutors and correctional services exercise some degree of discretion to decide on those who are culpable, for what crime and how they should be punished. For example, police officers, acting in accordance with the law, decides who to arrest, who to prosecute and for what offense to prosecute (Barkan & Bryjak 2011). The police may also decide simply to give a warning, particularly if the offense is minor. When police hand in the case to the prosecutor, he can use discretion, based on his understanding and interpretation of the law, to pursue or dismiss the case. In this case, the prosecutor’s decision can be based on the characteristics of the offender, the strength of the case, the nature of the case and availability of alternative remedies. On the other hand, judges have discretion in a wide range of judicial decisions, from award of damages to grant or denial of continuance motions. However, it is important to note that the practice of discretion by judges is an integral part of the doctrine of judicial independence and separation of powers.
Prosecutorial Discretion
Unlike judges, police and correctional services officers, prosecutors exercise unlimited discretion. The prosecutor decides who to charge for offenses, what charges to place, when to drop charges against offenders and how to allocate resources for prosecutorial processes (American Bar Association 2007). In jurisdictions where the death penalty still functions, the prosecutor can use discretion to decide those who should die or live. However, it is important to note that his actions must be guided by the law and that as he exercises discretion, he should be more concerned with justice and fairness. The most dominant areas where prosecutors exercise discretion are the charges to file, plea-bargaining and decision to dismiss charges brought to him. The decision to charge is usually based on the availability of sufficient evidence, seriousness of the offence and the offender’s criminal record. In plea-bargaining, the prosecutor uses discretion to promise lesser or more lenient charges on condition that the accused pleads guilty.
The Controversy Behind Discretion In Criminal Justice Practice
When a judicial officer exercises discretion, he acts under a formal set of laws and in public capacity. These laws are products of discretion by other players in the criminal justice institution such as legislators. In this case, the legislators are the authors of the criminal code on which the jurisdiction is created. All the world jurisdictions, however detailed their laws are, allow discretion. As a result, the judicial players find themselves countermanding and
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