Judicial discretion helps make sense of the law. When cases are vague, a judge’s interpretation may be needed to bring closure to a criminal or civil proceeding. Judicial discretion may be needed to address a procedural error. A judge’s discretion is far reaching and has impact upon many courtroom proceedings, such as motions filed, continuances granted, and sentence outcome. Judicial discretion, then, is fundamentally important and is used to bring criminal and civil proceedings to completion.
For some, the role of the judge may be seen as benign and sacrosanct. For others, judicial discretion may result in unjust decisions that impact victims and defendants. Indeed, some scholars have suggested that judicial discretion is desirable, arguing that it provides predictability of outcome. In short, judicial discretion is an unavoidable fixture in the courtroom, sometimes introducing rigidity, flexibility, and/or rationality in sentence outcome.
Judicial discretion has been around for many years, but only recently have legal scholars and criminologists begun to write extensively about this phenomenon. There are reports from the early 1900s illustrating abuse of judicial discretion. During this time period, for example, it was not uncommon for judges to reward police officers for encouraging defendants to admit their guilt. More recently, judicial discretion may be observed in the absence of statutory law, where judges may use their authority to resolve disputes. In this instance, judges may use their discretion to look at past decisions in order to resolve matters that have not been addressed by lawmakers. This raises questions about the ethics surrounding the role of the judge and whether judges should use their discretion to establish or influence policy.
Linked to judicial discretion is plea bargaining, a process used to bring about a guilty plea through a reduced sentence and/or charge. In another way, judicial discretion is implicated by virtue of the frequency and seclusion of plea bargaining, a widespread practice used to dispose of roughly 90 percent of all criminal cases. This discretion has resulted in many abuses. The frequency and seclusion of plea bargaining should raise far-reaching legal and ethical questions. What, for example, is the “real” weight of the evidence used to induce a plea of guilt?
At the federal level, there is documented widespread evidence of judicial discretion among federal court district judges before passage of the Sentencing Reform Act of 1984. Tom Feeney observes that federal judges had unfettered discretion to impose a sentence unencumbered by appellate review. This discretion resulted in similarly situated defendants receiving different sentences for the same offense. Research also reveals that disparate sentences were highly correlated with the race of the accused. Ironically, up until passage of the Sentencing Reform Act of 1984, judicial discretion at the federal level was tolerated under the guise of rehabilitation. Judicial decisions and the resulting disparities were driven by a judge’s perception of a defendant’s amenability to treatment.
Discussions about judicial discretion cannot be viewed in a vacuum. Research findings, for example, suggest that to look singularly at judicial discretion is to miss how judges and courtroom work groups interface. These courtroom work groups have established norms and values that guide the business of the court, much of it sanctioned by the judge. Indeed, many established patterns and/or practices might not be possible without judicial consent. Put simply, this group strives toward certainty of sentence outcome, and judicial discretion is at the center of this phenomenon. One inference here is that judicial reform efforts must weigh the dynamics of the work group. To the uninitiated, much of what occurs in the courtroom has both instrumental and symbolic value; we are lead to believe that “justice is being done” and that judicial proceedings are predicated upon the facts. In reality, the outcome is more likely influenced by group norms, legal and nonlegal variables, including the perception of threat. There is research, for example, pointing toward disparate treatment between black, white, Hispanic, and Asian American offenders who have committed similar offenses. Many Asian American offenders, for example, serve less time for the same offense, presumably because they may be viewed by judges and other members of the courtroom work group as less dangerous— and more amenable to treatment interventions.
One of many ironies related to judicial discretion appears to be that sometimes newly implemented court reforms designed to ensure fairness introduce greater informality inside the courtroom. Similarly, Philip Dubois observes that some reform movements (designed to stem judicial discretion) have had the net effect of providing greater latitude to the judge, raising questions about the unintended consequences of reform efforts. In another way, this increased informality results in the judge’s role becoming less adjudicatory and more bureaucratic. Third, Cassia Spohn suggests that judicial reforms designed to reduce judicial discretion tend to have the greatest impact upon offenders with very severe sanctions. Put bluntly, the more frequent and routine cases in the courtroom may not be impacted.
It has been hypothesized that the introduction of more female and black judges might result in less disparity; the assumption here is that minorities will bring their experiences into the courtroom and mete out equal justice, but research findings have not been consistent. The reality is that many black and female judges are as harsh, if not harsher, than their white counterparts on minority defendants. According to Cassia Spohn, one plausible explanation is that the law is essentially a conservative doctrine, impacting a judge’s ability to make a difference.
No discussion about the ethics of judicial discretion is complete with highlighting so-called judicial activism and judicial restraint. Judicial activism implies that judges bring their biases into the courtroom—that these judges have an agenda. Critics of the “living” Constitution doctrine argue that judges intend to legislate from the bench; critics of the “original intent” doctrine argue that overlooking precedent and reversing previous court decisions is also judicial activism. One such example is the concern that some judges (drawing from their personal beliefs) may use their positions to repeal Roe v. Wade, the landmark case that resulted in the legalization of abortion. Judicial activism in the guise of discretion inevitably raises ethical questions.
Judicial discretion, despite attempts at meaningful reform, continues to result in disparate outcomes. There is, nevertheless, a correlation between the organizational needs of the courtroom and judicial discretion. Possibly, more open courtrooms and greater media attention facilitating the public’s observation of the judicial process would result in some judges and work groups behaving differently.
- Dubois, Philip, ed. The Politics of Judicial Reform. Leton, MA: Leton, 1982.
- Epstein, Lee and William M. Landes. “Was There Ever Such a Thing as Judicial Self-Restraint?” California Law Review, v.100 (2012).
- Feeney, Tom. “Reaffirming the Rule of Law in Federal Sentencing.” Criminal Eustice Ethics, v.22/2 (2003).
- Harris, David. A. “Justice Rationed in the Pursuit of Efficiency.” In Courts and Justice: A Reader. G. Larry Mays and Peter Gregware, eds. Long Grove, IL: Waveland Press, 2004.
- Kramer, Larry. “Judicial Supremacy and the End of Judicial Restraint.” California Law Review, v.100 (2012).
- McLean, Edward. The Most Dangerous Branch: The Judicial Assault on American Culture. Lebanon, NH: University Press of America, 2008.
- Munger, Frank. “Movements for Court Reform: A Preliminary Interpretation. In The Politics of Judicial Reform, Pulip Dubois, ed. Leton, MA: Leton, 1982.
- Spohn, Cassia. How Do Judges Decide? The Search for Fairness and Justice in Punishment. Thousand Oaks, CA: Sage, 2009.
- Spohn, Cassia and David Holleran. “The Imprisonment Penalty Paid by Young, Unemployed Black and Hispanic Offenders.” Criminology, v.38 (2000).
- Steffensmeir, Darrell and Stephen Demuth. “Ethnicity and Sentencing Outcomes in U.S. Federal Courts: Who Is Punished More Harshly?” American Sociological Review, v.65 (2000).
- Waluchow, Wilfrid. “Strong Discretion.”Philosophically Quarterly, v.33/133 (1983).
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