Southern New Hampshire University
CJ-230: Discretion in Criminal Justice
Module 4 Notes
Discretionary Decisions in the Different Branches of Criminal Justice
What are the ethical issues faced by defense attorneys, prosecutors, and judges?
oThere are many ethical issues that defense attorneys, prosecutors, and judges face.
Some of these issues include:
Conflict of interest: A conflict of interest occurs when a lawyer or judge
has a personal interest in a case that could affect their judgement. For
example, a lawyer might represent a client who is a friend or family
member.
Duty to disclose: Lawyers and judges have a duty to disclose any
information that could affect the outcome of the case. For example, a
lawyer might know that their client is guilty but choose not to disclose this
information to the court.
Privileged communication: Lawyers and judges have a duty to protect
certain types of communication, such as communications between a client
and their lawyer. For example, a lawyer cannot disclose information that
their client has told them in confidence.
Fairness: Lawyers and judges have a duty to ensure that all parties in a
case are treated fairly. For example, a lawyer cannot represent two clients
with conflicting interests.
What are some of the areas of forensic science that have been challenged by opponents?
oThe reliability of scientific evidence: Some opponents argue that scientific
evidence is not always reliable, and that it can be manipulated or distorted to
support a particular conclusion.
oThe bias of scientists: Some opponents argue that scientists are often biased, and
that this bias can affect their findings.
oThe lack of transparency: Some opponents argue that the forensic science
community is not transparent enough, and that this lack of transparency makes it
difficult to assess the reliability of scientific evidence.
oThe cost of forensic science: Some opponents argue that forensic science is too
expensive, and that this money could be better spent on other priorities.
How have federal sentencing guidelines changed due to Supreme Court decisions?
oThere are a few Supreme Court decisions that have had a significant impact on the
federal sentencing guidelines. The guidelines are now advisory, and judges have
more discretion in sentencing. However, the guidelines still play an important role
in the sentencing process, and they can be used by judges as a starting point for
determining a sentence.
How does the authoritative nature of the legislature impact discretion?
oThe legislature sets the parameters of what is and is not permissible, which limits
the scope of discretion that officials can exercise. Second, the legislature can
provide guidance on how to exercise discretion, which can help to ensure that
discretion is exercised in a fair and consistent manner. Third, the legislature can
hold officials accountable for their use of discretion, which can discourage abuse
of discretion. In conclusion, it sets the limits on what is and is not permissible,
provides guidance on how to exercise condition, and holds officials accountable
for their use of discretion. However, the legislature does not have absolute control
over discretion, and officials still have the ability to make decisions within the
parameters set by the legislature.
What are three ways that the police use discretion to carry out their professional
responsibilities?
1. Deciding whether or not to arrest someone. Police do not have to arrest
someone every time they see a crime being committed. They can use their
discretion to decide whether or not an arrest is necessary.
2. Deciding what charges to file. Police officers can file a variety of charges
against someone who has been arrested. They can use their discretion to decide
what charges are appropriate.
3. Deciding what sentence to recommend. Police officers can recommend a
sentence to the judge when someone has been convicted of a crime. They can use
their discretion to decide what sentence is appropriate.
What are five ways in which corrections administrators employ discretion?
1. Deciding who to admit to prison. They can use this discretion to decide who is a
good candidate for rehabilitation and who is a danger to the public.
2. Deciding how to classify prisoners. This classification can affect the prisoner’s
access to programs and services, as well as their level of security.
3. Deciding when to release prisoners on parole. They can use this discretion to
decide when a prisoner is ready to reenter society and when they are still a danger
to the public.
4. Deciding how to punish prisoners who violate the rules. This punishment can
include things like solitary confinement, loss of privileges, and even additional
time in prison.
5. Deciding how to handle emergencies. They can use this discretion to decide
how to protect the safety of the prisoners and the staff.
Why are prosecutors considered gatekeepers of the court?
oProsecutors are considered gatekeepers of the court because they have the power
to decide whether or not to bring charges against someone. They also have the
power to decide what charges to bring, and they can negotiate plea deals with
defendants. They are also the ones who represent the government in court. They
are responsible for presenting the evidence against the defendant and arguing for a
conviction.
What are the types of pretrial decisions that a prosecutor must consider?
oWhether to file charges. Prosecutors must decide whether or not to file charges
against someone who has been accused of a crime. They must consider the
evidence against the defendant and the likelihood of a conviction.
oWhat charges to file. They must consider the severity of the crime, the
defendant’s criminal history, and the evidence against the defendant.
oWhether to offer a plea deal. A plea deal is an agreement between the
prosecution and the defense in which the defendant agrees to plead guilty to a
lesser charge in exchange for a lighter sentence.
oWhat sentence to recommend.
oWhether to appeal a conviction. If they believe that the defendant was convicted
unfairly, they may appeal the conviction to a higher court.
How do prosecutors manage the plea-bargaining process?
oBuild a strong case. Prosecutors must build a strong case against defendants to
get them to agree to a plea deal. This means gathering evidence, interviewing
witnesses, and preparing for trial.
oBe willing to negotiate. This means being willing to reduce charges, reduce
sentences, and even drop charges altogether.
oBe prepared to go to trial. Prosecutors must be prepared to go to trial if they
cannot reach a plea deal with a defendant. This means being prepared to present
their case to a jury and argue for a conviction.
What are the factors that influence prosecutorial decision making?
oThe strength of the evidence. If the evidence against a defendant is strong,
prosecutors are more likely to file charges and pursue a conviction.
oThe severity of the crime. Prosecutors are more likely to file charges and pursue
a conviction for serious crimes than for less serious crimes.
oThe defendant’s criminal history. Prosecutors are more likely to file charges and
pursue a conviction for defendants who have a history of criminal behavior.
oThe victim’s wishes. Prosecutors are more likely to file charges and pursue a
conviction if the victim wants the defendant to be punished.
oThe public’s interest. Prosecutors are more likely to file charges and pursue a
conviction if they believe that the public is interested in seeing the defendant
punished.
Why are risk assessments useful in criminal justice decision making?
oRisk assessments are useful in criminal justice decision making because they can
help identify and manage risks. By assessing the risk of a defendant reoffending,
judges and other officials can make more informed decisions about pretrial
release, sentencing and parole. They can also help improve public safety. By
identifying high-risk offenders, officials can target their resources to those who
are most likely to commit new crimes. This can help to reduce crime rates and
make communities safer.
How does the race of the defendant impact courtroom decisions?
oStudies have shown that judges are more likely to sentence black defendants to
harsher punishments than white defendants, even when the defendants have
similar criminal histories. Further, juries are more likely to convict black
defendants than white defendants. There are a number of factors that contribute to
these disparities. One possibility is implicit biases. Judges and jurors may be more
likely to associate black defendants with crime or violence, and this may
influence their decisions. Additionally, black defendants may be less likely to
have access to quality legal representation, which can also affect the outcome of
their cases.
What is the risk-need-responsivity model?
oThe risk-need-responsivity model is a model for offender assessment that was
developed in the 1990s. The model is based on the idea that offenders can be
classified into three categories: low-risk offenders, medium-risk offenders, and
high-risk offenders. Low-risk offenders are the least likely to reoffend, while
high-risk offenders are the most likely to reoffend. Medium-risk offenders are
somewhere in between. The RNR model also identifies three criminogenic needs
that are associated with offender recidivism: static needs, dynamic needs, and
responsivity needs. Static needs are needs that cannot be changed, such as age or
gender. Dynamic needs are needs that can be changed, such as substance abuse or
antisocial attitudes. Responsivity needs are needs that are related to how offenders
learn and respond to treatment.
What factors can influence probation and parole officers in decision making?
oInternal factors such as the officer’s education, training, experience, and
personal beliefs.
oExternal factors such as laws and policies of the jurisdiction, the availability of
resources, and the public’s opinion.
What are the similarities and differences between human error and human discretion and
their impacts in the criminal justice system?
Similarities
oLack of training or experience
oStress or fatigue
oPoor judgement
oBias
Differences
oHuman error is unintentional, while human discretion is intentional. Human error
can lead to judgements being made, while human discretion can lead to decisions
being made that are not always in the best interests of justice.
Impacts
oThe impacts of human error and human discretion can be significant. Human error
can lead to innocent people being convicted of crimes, while human discretion
can lead to people being punished more severely than they deserve.
Aspects of Discretionary Laws
What are the justifications for law, including protections against harm to others, offensive
conduct, harm to self, and harm to societal morals?
oTo protect people from harm. Law can help to prevent people from being
harmed by others, by creating rules about what is and is not acceptable behavior.
For example, laws against murder and assault protect people from being killed or
injured by others.
oTo promote order and stability. Law can help to promote order and stability in
society by creating rules about how people should behave. For example, laws
against theft and vandalism help to prevent people from taking what does not
belong to them or damaging property.
oTo uphold moral values. Law can help to uphold moral values by creating rules
about what is and is not acceptable behavior. For example, laws against adultery
and incest help to uphold the moral value of fidelity.
oTo promote economic efficiency. Law can help to promote economic efficiency
by creating rules that facilitate trade and commerce. For example, laws that
protect intellectual property rights to help promote innovation and economic
growth.
oTo protect individual rights. Law can help to protect individual rights by
creating rules that limit the power of the government. For example, the First
Amendment to the United States Constitution protects the right to free speech.
What is the role of law in society, and what paradigms have developed to understand how
law is formed and enforced?
Some of the most common paradigms include:
oThe positivist paradigm views law as a system of rules that are created by a
sovereign authority, such as government. This paradigm emphasizes the
importance of obedience to the law and the need for a strong central authority to
enforce it.
oThe naturalist paradigm views law as a system of rules that are based on natural
law, or the laws of nature. This paradigm emphasizes the importance of justice
and the need for law to be applied fairly and impartially.
oThe critical league studies paradigm views law as a system of rules that are
used to maintain the status quo and to oppress the poor and marginalized. This
paradigm emphasizes the importance of social change and the need for law to be
used to promote justice and equality.
What is the difference between specific deterrence and general deterrence? How do these
forms of deterrence occur in mandatory sentencing?
oSpecific deterrence is a type of punishment that is designed to deter the individual
who is being punished from committing a crime again. General deterrence is a
type of punishment that is designed to deter others from committing crimes.
Specific deterrence can occur in mandatory sentencing through the use of harsh
penalties. For example, a mandatory sentence of life in prison for a first-time
offense of murder may be seen as a way to specifically deter that individual from
committing murder again. General deterrence can occur in mandatory sentencing
through the use of publicizing the sentences. For example, if the news media
widely publicizes the sentence of a person who has been convicted of a crime, it
may deter others from committing similar crimes.
