As It Applies to the Criminal Justice System, What Is the "Hydraulic Effect?"

Discretion in the Criminal Justice System

Shawn D. Bushway, Brian Forst

• Last REVIEWED: 26 May 2016
• LAST MODIFIED: 02 March 2011
• DOI: 10.1093/obo/9780195396607-0083

Introduction

Discretion is the breadth granted officials to act under a formal set up of rules and in a public chapters. The rules themselves are normally the result of discretion by other actors in the criminal justice system, such equally the legislature, which has created the criminal code for the jurisdiction. However, even the most detailed rules allow for discretion, and it is possible that this discretion will let actors subject to the rules to countermand or contradict the rules. The best example of this type of contradiction comes in the case of mandatory sentences, where legislative intent is frequently averted through the use of prosecutorial discretion. Even if executed "inside" the rules, all the same, discretion can pb directly to disparity, where "like" cases are treated differently. In the case of sentencing, disparity involves the application of different punishments to cases that appear to exist identical on the merits, or alternatively, the application of same punishment to cases that announced different. It is common to focus on disparity along a particular dimension, such equally race. Disparity in this framework takes on a different meaning, and refers instead to the fact that individuals with a given feature are over- (or under-) represented in the criminal justice system relative to their representation either in the population or in the commission of a type of crime. Racial disparity is further decomposed into 2 types: warranted or unwarranted. Warranted disparity is the variation in outcomes due to legally relevant factors such as criminal history, crime type, and crime severity, which are correlated with race. Unwarranted disparity is the variation in outcomes that can be reasonably identified as being the sole result of race or other extralegal factors (e.g., gender) after all legally mandated sentencing factors are taken into account. This framework crystallizes the importance of rules in the empirical assay of discretion. Any analysis that does not fully account for the legally mandated process (and factors) runs the gamble of mistakenly labeling disparity as unwarranted when, in fact, information technology may be "warranted" according to the rules of the system. But it also raises the specter of as well much deference to the rules, especially in cases where the rules themselves accept the potential to create disparity, as in the case of federal rules that call for tougher sanctions for dealing in "crack" cocaine rather than powder cocaine. For both of these reasons, any give-and-take of discretion must start from a review of the goals of the system and an understanding of how these goals are reflected in the formal rules of a system with many moving parts.

General Overviews

In their business relationship of the American Bar Foundation survey of 1953–1969 (Ohlin and Remington 1993), Editors Lloyd Ohlin and Frank Remington highlight the fundamental importance of discretion in the functioning of the criminal justice organization (CJS). They draw the CJS equally a complicated set of interdependent actors who act on cases involving individuals accused of crimes. Samuel Walker 1992 adds that the term organization is perhaps misleading, because the constabulary, courts, and corrections are largely independent of one some other, although the actions of each set of actors conspicuously have an impact on the others. The President'south Commission on Police force Enforcement and Assistants of Justice and Katzenbach 1967 elaborated on the American Bar Foundation survey past describing the complex web of relationships amidst these actors. For example, while judges can exercise discretion only in cases involving arrested offenders that prosecutors charge with crimes, sentencing policies and practices influence the actions of constabulary and prosecutors. Considering of the salience of sentencing policy to the exercise of discretion mostly, sentencing policy warrants treatment as a driver of discretion. The National Research Council's 1983, a landmark review of sentencing, offers a get-go systematic assessment of sentencing goals, policies, and the disparity and discrimination that can follow a lack of consensus on the fundamental purposes of sentencing. Two other classics on discretion are also included here: Kickoff, Dworkin 1977 treatment of the subject, which distinguishes between the routine exercise of discretion and the more controversial use of discretion to change policies viewed as misguided; and 2d, Gottfredson and Gottfredson 1988, a book on discretion, which offers a thoughtful business relationship of the essential aspects of discretion and how it tin can be used effectively to ameliorate the operation of the criminal justice organization.

• Dworkin, Ronald. 1977. Taking rights seriously. Cambridge, MA: Harvard Univ. Press.

  This book is a legal-theory classic on discretion. Information technology distinguishes discretion from ordinary personal decision making, not accountable to a set of standards or a higher authority (p. 31). Dworkin distinguishes further betwixt "weak" (ordinary judgment) and "strong" discretion (pp. 31–32), which draws on principles and is invoked under a duty that transcends normally applicable technical rules, relating to an "ultimate social rule or set up of social rules" (p. 69).

• Gottfredson, Michael R., and Don M. Gottfredson. 1988. Decision making in criminal justice: Toward the rational practice of discretion. New York: Plenum.

  An excellent book-length treatment of the decisions that create the flowchart in President'southward Commission on Police force Enforcement and Administration of Justice and Katzenbach 1967, including the decision by the victim to report the crime, an frequently disregarded part of the process. This text is probably all-time for a graduate-level class.

• National Research Quango 1983. "Sentencing practices and the sentencing reform movement." In Research on sentencing: The search for reform. Vol. 1. Edited by Alfred Blumstein, 39–68. Washington, DC: National Academies.

  This is the introduction to the landmark National Research Council volume on sentencing. The first chapter is a very readable discussion of the actors in the system, including the legislatures. The chapter is particularly noteworthy for its word of the goals of the system, including justice, fairness, and crime control/prevention, and the irresolute nature of these goals. Recommended for all readers.

• Ohlin, Lloyd E., and Frank J. Remington. 1993. Discretion in criminal justice: The tension betwixt individualization and uniformity. SUNY Series in New Directions in Criminal Justice Studies. Albany: Land Univ. of New York Press.

  Based on the landmark 1957 American Bar Foundation survey, this anthology gives a systemic view of the criminal justice system, in terms of the decisions made by police, prosecutors, judges, and corrections officials: practitioners prefer flexibility to rules; discretion is exercised generally at the lowest levels of the organisation (especially in policing and prosecution) and with limited transparency; and attempts to control decisions at i stage impact decisions fabricated by agents at other stages of the process, in a hydraulic manner.

• President's Commission on Law Enforcement and Assistants of Justice and Nicholas de B. Katzenbach. 1967. The claiming of crime in a free society. Washington, DC: Government Printing Office.

  This is an important historical certificate notable for its inclusion of the now-iconic "criminal justice flowchart" (pp. 8–ix), which highlights the complication of the system and the process of choice by which ever fewer defendants go along farther into the system. The document is also notable for its consideration of police, courts, and corrections (chapters 4, five, and six) in the context of crime control. An updated version of the chart tin be found on the Bureau of Justice Statistics website.

• Walker, Samuel. 1992. Origins of the contemporary criminal justice epitome: The American Bar Foundation survey, 1953–1969. Justice Quarterly 9.one: 47–76.

  DOI: ten.1080/07418829200091251

  Although somewhat anarchistic in its historical arroyo, the article does a skillful task of describing the development of the concept of the "criminal justice system" and the role of discretion inside that system. The paper is very readable and should generate much discussion about the importance of paradigms in a graduate or undergraduate course.

back to peak

Users without a subscription are non able to see the full content on this folio. Delight subscribe or login.

How to Subscribe

Oxford Bibliographies Online is available by subscription and perpetual access to institutions. For more data or to contact an Oxford Sales Representative click here.

velascoaffhand.blogspot.com

Source: https://www.oxfordbibliographies.com/view/document/obo-9780195396607/obo-9780195396607-0083.xml

Share this post