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Southern New Hampshire University
CJ-230: Discretion in Criminal Justice
Module 7 Notes
Amount of Discretion
What are the different points at which police officers may have to use discretion?
1. Arrest: Police officers have discretion when deciding whether or not to arrest
someone. For instance, they may choose to issue a warning, give a citation, or
make an arrest depending on the situation.
2. Use of force: Officers have discretion in determining how much force to use
when dealing with a suspect. They must balance the need for force with the need
to avoid excessive force.
3. Traffic stops: Officers have discretion in deciding whether to issue a warning, a
citation, or make an arrest during a traffic stop.
4. Searches and seizures: Officers must make a judgement about when to conduct a
search and how invasive that search should be.
5. Juvenile offenses: Officers have discretion in dealing with juvenile offenders.
They may choose to issue a warning, make an arrest, or refer the case to juvenile
6. Domestic violence: Officers may choose to arrest a suspect in a domestic
violence case or refer the case to court.
7. Mental health: Officers may need to use discretion when dealing with
individuals who are experiencing mental health crises. The may choose to take the
person to a hospital for evaluation or arrest them.
8. Disruptive behavior: Officers may choose to use discretion when dealing with
disruptive behavior in public places. They may choose to issue a warning, make
an arrest, or refer the case to court.
9. Use of discretion in investigations: Officers may use discretion when
investigating crimes. They may choose to focus on certain aspects of the case,
such as interviewing certain witnesses or collecting specific evidence.
What are police typologies and how do they impact discretion?
o Police typologies refer to categorizations of police officers based on their
personalities, beliefs, values, and attitudes. The impact of police typologies on
discretion is significant because the way police officers use their discretion is
influenced by their individual characteristics and beliefs. They can also influence
the way officers interact with different racial, ethnic, or socio-economic groups.
What are some factors that can impact prosecutors’ decision making?
1. Evidence: The strength and quality of the evidence in a case can be a significant
factor in a prosecutors decision-making. If the evidence is strong, a prosecutor
may be more likely to pursue charges, while weak evidence may result in charges
being dropped.
2. Criminal history: The defendant’s criminal history can also play a role in a
prosecutors decision-making. If the defendant has a history of criminal behavior,
the prosecutor may be more likely to pursue charges and seek a harsher sentence.
3. Victim cooperation: The willingness of the victim to cooperate with the
prosecution can impact the prosecutors decision-making. If the victim is
uncooperative or unwilling to testify, the prosecutor may be less likely to pursue
4. Public opinion: Public opinion can also impact prosecutors decision-making,
particularly in high-profile cases. Prosecutors may be influenced by media
coverage or pressure from the community to pursue certain cases or seek specific
5. Resources: The resources available to a prosecutors office can also impact
decision-making. If a prosecutors office is understaffed or underfunded, they may
be more selective in the cases they pursue.
6. Political pressure: Politicians, including elected officials or their appointees, may
exert pressure on prosecutors to pursue or drop certain cases for political gain.
What are some examples of judicial decision making?
1. Interpretation of Statutes: Judges interpret laws and statutes to determine their
meaning and application to a particular case.
2. Precedent: Judges use past legal decisions as a guide for future cases, known as
precedent. They also consider the facts of previous cases and how they were
decided in order to arrive at a just decision in the current decision.
3. Legal Reasoning: Judges engage in legal reasoning, which involves analyzing
the facts of a case and applying legal principles to arrive at a decision. This may
involve identifying relevant legal rules, weighing the evidence, and balancing
competing interests.
4. Judicial Discretion: Judges have discretion to make decisions in certain areas,
such as sentencing in criminal cases. This involves weighing various factors and
determining an appropriate outcome based on the specific circumstances of the
5. Adjudication: Judges hear and resolve disputes between parties by evaluating
evidence presented by both sides and making a decision based on the law and the
facts of the case.
6. Judicial Review: Judges review actions taken by other branches of governments,
such as executive or legislative decisions, to ensure they are in compliance with
the Constitution and other legal principles.
What are some influences on judicial decision making?
1. Legal precedent: Judges often look to past legal decisions, known as precedent,
to guide their decisions in current cases. Past legal decisions can help judges to
establish legal principles, identify relevant factors, and make more consistent
2. Judicial philosophy: Judges may have different views on the role of the
judiciary, the interpretation of the law, and the importance of individual rights.
These differences in philosophy can shape how judges approach and decide cases.
3. Political ideology: Judges may appointed or elected based on their political
affiliations, and their political beliefs can influence their decision-making.
Conservative judges, for example, may be more likely to favor limited
government and strict interpretation of the law, while liberal judges may be more
likely to favor expansive government and a more flexible interpretation of the
4. Personal background and experience: Judges bring their own life experiences
and professional backgrounds to their decision-making. For instance, a judge who
has experience as a prosecutor may be more likely to favor tough sentences in
criminal cases.
5. Public opinion: Judges may be influenced by public opinion on certain issues,
particularly in cases that involve controversial topics or issues that are currently in
the news.
6. The legal briefs and arguments presented by the parties: Judges may be
influenced by the legal arguments and evidence presented by the parties to a case,
as well as the legal briefs submitted by their attorneys.
Are correctional officers afforded wide or limited discretion?
o Correctional officers are typically afforded a significant amount of discretion in
carrying out their duties, but the exact amount of discretion can vary depending
on the policies and procedures of the particular correctional facility. In general,
correctional officers are responsible for maintaining order and ensuring the safety
of inmates, staff, and visitors within the facility. This can involve a wide range of
tasks, including conducting searches, enforcing rules and regulations, responding
to emergencies, and monitoring inmate behavior. To carry out these duties,
correctional officers are often given a significant degree of discretion in making
decisions about how to respond to different situations. At the same time,
correctional officers are typically required to follow established policies and
procedures and to act in accordance with the law. This means that their discretion
is not unlimited and must be exercised in a responsible and lawful manner.
Which areas of corrections involve discretion?
1. Use of force: Correctional officers may need to use force to control an unruly inmate
or in response to a physical threat. The decision about how much force to use and
when to use it involves a significant amount of discretion.
2. Disciplinary actions: Correctional officers are responsible for enforcing the rules and
regulations of the correctional facility, and they may need to take disciplinary actions
against inmates who violate these rules.
3. Cell assignments: Correctional officers may need to make decisions about which
inmates to assign to a particular cell or housing unit. This decision could be based on
factors such as inmate behavior, gang affiliation, or mental health needs.
4. Classification and placement: Correctional officers may need to make decisions
about the classification and placement of inmates based on factors such as their
offense history, criminal record, and risk level.
5. Medical treatment: Correctional officers may need to make decisions about the
medical treatment of inmates who require medical attention. This could involve
deciding whether to transport an inmate to a medical facility or to provide treatment
within the correctional facility.
What are some potential abuses of discretion?
1. Excessive use of force: Correctional officers may use excessive force when
subduing inmates, leading to injury or even death. This is a serious abuse of
discretion and may result in criminal charges and civil lawsuits.
2. Discrimination: Correctional officers may discriminate against inmates based on
their race, ethnicity, gender, or religion, in the use of disciplinary actions or cell
assignments. This violates the rights of inmates and can lead to legal action.
3. Favoritism: Correctional officers may show favoritism towards certain inmates,
such as providing them with special privileges or more lenient treatment. This can
create a perception of unfairness and can undermine the legitimacy of the
correctional system.
4. Withholding medical treatment: Correctional officers may withhold medical
treatment from inmates who require it, putting their health and safety at risk. This
violates the right to medical care and can lead to serious health consequences or
even death.
5. Sexual abuse: Correctional officers may engage in sexual abuse of inmates,
which is a serious violation of their rights and can result in criminal charges and
civil lawsuits.
How is discretion utilized by probation officers?
1. Supervision: Probation officers have discretion in determining the level and
intensity of supervision required for each probationer, which may be based on
factors such as the offenders criminal history, the nature of the offense, and the
offenders behavior while on probation.
2. Conditions of probation: Probation officers have discretion in determining the
conditions of probation for each offender, such as drug testing, counseling, or
community service. They must balance the need for public safety with the
offenders individual needs.
3. Violations: Probation officers have discretion in responding to violations of
probation, such as missed appointments, drug use, or new criminal offenses. They
may choose to respond with warnings, increased supervision, or revocation of
4. Treatment referrals: Probation officers may refer offenders to treatment
programs such as substance abuse counseling, mental health services, or job
training programs, based on their individual needs and the availability of
resources in the community.
5. Case planning: Probation officers may develop case plans for each offender,
outlining goals, strategies, and specific actions to be taken to support successful
reentry into the community. These plans are tailored to the individual needs of
each offender and involve a significant amount of discretion.
What are examples of how personal preferences can impact the discretion of probation
What is judicial discretion?
o Judicial discretion is the authority given to judges to make decisions in a legal
case based on their interpretation of the law and the specific circumstances of the
case. It allows judges to use their judgement and expertise to make decisions that
are fair and just, even if they do not strictly follow the letter of the law or
established legal precedent. Judges are expected to exercise judicial discretion in a
responsible and ethical manner, taking into account all relevant factors and
avoiding any biases or personal beliefs that may influence their decisions. They
must balance the need for justice with the need for consistency and predictability
in the legal system, ensuring that their decisions are consistent with legal
principles and precedents.
What are some limitations on judicial discretion?
o Judges must follow established legal principles and precedent in making decisions
and cannot disregard the law or create new legal rules.
o Judges must follow rules of evidence in determining what evidence is admissible
in a trial, and cannot consider evidence that is irrelevant or unreliable.
o Judges must adhere to statutory and unconstitutional law in making decisions, and
cannot violate the rights of individuals under the law.
o Judges must adhere to ethical standards of conduct, such as impartiality and
avoiding conflicts of interest, in making decisions.
o Judicial decisions are subject to appellate review, which can overturn a decision
that is found to be in error or not supported by the law.
o In cases where a jury is involved, judges are limited in their discretion to set aside
a jury verdict or overrule a jury’s factual findings.
What are the benefits of narrowing discretion of criminal justice officials?
1. Consistency: By limiting the discretion of criminal justice officials, decisions are
more likely to be consistent and predictable, which can increase public trust in the
system. This can also help reduce the potential for bias or discrimination in
2. Fairness: Narrowing discretion can promote fairness by ensuring that decisions
are based on objective criteria, such as the severity of the offense, the offender’s
criminal history, and the nature of the victim’s injuries, rather than on the personal
biases or subjective opinions of criminal justice professionals.
3. Accountability: When discretion is limited, criminal justice officials are held
accountable for their decisions and actions. This can increase transparency and
oversight, which can reduce the potential for corruption or abuse of power.
4. Efficiency: By limiting discretion, criminal justice officials are able to work
within established guidelines and protocols, which can increase efficiency and
reduce the potential for errors or inconsistencies.
5. Cost savings: By narrowing discretion, criminal justice officials can reduce the
use of incarceration and other costly measures, which can lead to cost savings for
What are examples of non-arrest decisions made by police?
o Verbal Warning
o Citation
o Referral to Social Services
o Mediation
o Dismissal
o Restorative Justice
Situational factors are seen to be significant in terms of police officer decision making.
What are situational factors?
o Situational factors are external variables or circumstances that can influence
police officer decision making. These factors can include:
The nature of the offense. For example, a violent crime may require a
different response than a non-violent crime.
The level of danger. Officers may take different actions depending on
whether they believe they are in immediate danger or not.
The suspect’s behavior. If a suspect is compliant and cooperative,
officers may be less likely to use force or make an arrest.
The location. For example, if an incident occurs in a public place, officers
may need to take different actions than if it occurs in a private residence.
The presence of bystanders. Officers may need to take different actions
in order to ensure the safety of bystanders or to prevent them from
The time of day. Officers may be more likely to use force during
nighttime encounters when visibility is reduced.
The availability of backup. If officers have backup readily available,
they may be more likely to take risks or use force.
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