Discretion

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For other uses, see Discretion (disambiguation).
Discretion, Tacuinum Sanitatis casanatensis (XIV secolo)

Discretion is a noun in the English language with several meanings revolving around the judgment of the person exercising the characteristic. Some view discretion negatively, while some view it positively. However it is viewed, there is no argument discretion is constantly being used from all levels of law enforcement. From the time an officer chooses to pursue a person, and throughout the courts process and conviction of said person.

Definition[edit]

Those in a position of power are most often able to exercise discretion as to how they will apply or exercise that power.

The ability to make decisions which represent a responsible choice and for which an understanding of what is lawful, right or wise may be presupposed. see Websters Third New International Dictionary (unabridged)

In law[edit]

In the legal system, discretion is often defined as the ability to choose where, how and with what severity to act. A person chooses to utilize his or her options and decides which to use, whether this is arresting a person on the street (criminal) or evicting someone from an apartment (civil) or anywhere in between.[1] There are some arguments that implementing discretion overrules or weakens the rule of law. However, laws cannot be written without using discretion and therefore the rule of law serves to guide discretion towards societal expectations, norms and, at least in part, public interest[2]

Criminal[edit]

The term "Crime is defined as an action that is by law, banned or restricted and enforced via Punishment.[3] But, where law ends and discretion begins lies in implementing those laws. The enforcers, police officers, are tasked with enforcing these regulations, but they often have the discretion of when to file charges and arrest. For example, a traffic violation, the police officer may simply issue a warning. In fact discretion can be found in all stages of the criminal justice system.[4] The victim, has the discretion to use self defense and to report the crime given the opportunity. The Dispatch officer decides the priority of the call, an officer responding has discretion to take statements from witnesses as well as detain potential suspects. The suspect/the accused has the discretion to obtain a lawyer, how they will plead and to accept a plea bargain. The prosecutor has the choice to prosecute a case or drop the charges as well as suggesting plea bargains. The judge has discretion every time an objection is raised or evidence is given. The jury has discretion over the final verdict. These examples are only a small cross section of the chain of choices that is criminal law

One article shows that when officers respond to a call for service, areas with a high rate of Black or wealthy citizens has a great impact on the officers' decision to downgrade a crime or incident reported. Officers experience in different surroundings have an impact on the way they react to service calls. The economic status, poverty level, race and ethnicity have an impact on the officer and how he see's and reacts to his surroundings. Scholar Michael Banton stated that "In different neighborhoods police provide different services". This is a good example of how and why police are able to use discretion in the performance of their duties. Different environments and neighborhoods provide different levels of dangers and greater levels of crime taking place than others. Which is why an officer might choose to downgrade a crime in a wealthy neighborhood compared to an economically unstable one. The article also states that merely being in a different environment from the one the officer lives in or is accustomed to forces the officer to treat it differently. Thus, the officer would then treat the individuals differently. This can be an argument either for or against police using discretion. On the one hand, all people should be treated equally regardless of race or economic status. On the other hand, officer and public safety are the most important duties for an officer. If an officer can recognize that a certain area requires a different approach in order to keep that safety, they should use that discretion appropriately. [5]

Civil[edit]

In civil actions, judges and juries are also deemed to have discretion in the matter of damages. Judges also have discretion in the grant or denial of certain motions, e.g. a motion for a continuance.

Abuse of discretion[edit]

The exercise of discretion by judges is an inherent aspect of judicial independence under the doctrine of the separation of powers. The standard of review applied to appeals from decisions involving the exercise of judicial discretion is "abuse of discretion."

"An abuse of discretion is a failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedent and settled judicial custom."[6] On appeal of an exercise of judicial discretion, "abuse of discretion" is a standard of review requiring the appellate court to find that the lower court's decision would "shock the conscience" of a reasonable person in order to reverse the decision below.

Military Discretion[edit]

Other contexts[edit]

The term often comes as part of "Viewer Discretion Is Advised" warning on TV shows before the show begins. In this context, VDA implies the show's content may not be suitable for some viewers; that is, too explicit.

References[edit]

  1. ^ Thorburn, Malcolm (Apr 2008). "Justifications, Powers, and Authority.". Yale Law Journal 117 (6): 1070–1130. 
  2. ^ Shane, Peter M (Winter 2013). "THE RULE OF LAW AND THE INEVITABILITY OF DISCRETION.". Harvard Journal of Law & Public Policy 36 (1): 21–28. Retrieved 29 October 2014. 
  3. ^ Merriam-Webster. [<http://www.merriam-webster.com/dictionary/crime "Crime"]. Merriam-Webster.com. Retrieved 10 October 2014. 
  4. ^ Thorburn, Malcolm (Apr 2008). "Justifications, Powers, and Authority.". Yale Law Journal. 117 (6): 1070–1130. 
  5. ^ Cynthia Lum (2011) The Influence of Places on Police Decision Pathways: From Call for Service to Arrest, Justice Quarterly, 28:4, 631-665
  6. ^ http://answers.encyclopedia.com/question/definition-abuse-discretion-344834.html