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Discretion has the meaning of acting on one's own authority and judgment. In law, discretion as to legal rulings, such as whether evidence is excluded at a trial, may be exercised by a judge. Some view discretion negatively, while some view it positively. Discretion exists at all levels of law enforcement and in many types of front-line bureaucrats. Discretion has been called "the Art of suiting the action to particular circumstances" (Lord Scarman). 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. [1]


In law

In the legal system, discretion is often defined as the ability of a judge to choose where, how and with what severity to sentence a person who has been convicted. A person chooses to utilize his or her options and decides which to use, whether this is a police officer arresting a person on the street (criminal) or evicting someone from an apartment (civil) or anywhere in between. [2] 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 [3]


The term crime is defined as an action that is by law, banned or restricted and enforced via Punishment. [4] 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. [5] 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 (prosecutorial discretion) 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.

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Police Officer making an arrest


One article shows that when officers respond to a call for service, if an area has a high rate of Black or wealthy citizens then it significantly affects the officers' decision to downgrade a crime or incident reported. Officers' experience in different surroundings affect the way they react to service calls. The economic status, poverty level, race and ethnicity influence the officer and how he sees 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. [6]

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Prosecutor at work


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.


Prosecutors have a huge discretional role in the criminal justice process. They have the ability to initiate and terminate all criminal prosecutions. They have to use discretion to weigh the rights of the accused, the feelings of the victim, and the capacity of prisons when determining a proper punishment. Prosecutors control plea bargains and thus have possibly the most discretion-based role in the criminal justice process. If they believe a person deserves to be in prison, they will pursue that route, knowing that the prisons are very full and would then lead to a person being released early without serving his full sentence. [7]


It is often hard to control officers' use of discretion because of the way it is applied to situations. "Policing the police" is a very important part in maintaining a balance of police discretion and controlling it so the power of discretion is not abused. Unfortunately, the police have an ability to perform an abuse of discretion without being noticed or regulated by the judicial or legislative community in what is referred to as the "legal shadow". In this place questionable police tactics are being performed and, in a sense, covered up with police privilege backed by government support. Although there has been some effort by the federal government to regulate police discretion, unless there is a conflict including the Constitution, it is difficult for them to involve themselves. Most of the time police misconduct doesn't draw enough attention to include federal intervention. [8]

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." [9] 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.

Positive use

Studies show that police officers use discretion to simplify their very complex job requirements and also to identify certain individual priorities, as each officer has to apply the very broad and often contradictory laws put into place by statutes and policymakers. If officers had to cite or make an arrest on every law being broken, we would need a police officer for every 2-3 citizens. We leave it up to the individual officer to use discretion in cases where a gray area resides. Should an officer ticket every person that speeds? Where do they draw the line? This is one of many situations where discretion comes into place. There are other things that contribute to the individual officer's use of their discretion. Often the sex or minority status of an officer would lead them to act in different ways and use discretion in different ways than that of the opposite. Where an officer was raised or what they have experienced would lead them to react to scenarios differently.

Not all discretionary usage by law enforcement is negative. They often use it so that they can simplify and weed out the true criminals from the average citizen. [10]

Discretion is the better part of valor

"Discretion is the better part of valor" is an idiom which is generally understood to mean the avoidance of problems or unnecessary risks by thinking carefully and exercising caution before taking action. [11] [12]

The phrase is also found in Act V, Scene IV of the Shakespearean play Henry IV, Part 1 , spoken by Falstaff to Prince Hal when the latter has mistaken the former for dead. Falstaff, who had been playing dead on the battlefield to avoid being killed, [13] tells Hal, "The better part of valour is discretion; in the which better part I have saved my life." [14]

Other contexts

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 younger viewers; that is, too explicit in terms of nudity, violence, sexual content, or language. From the book of Proverbs "As a jewel of gold in a swine's snout, so is a fair woman which is without discretion." [15]

Related Research Articles

The adversarial system or adversary system is a legal system used in the common law countries where two advocates represent their parties' case or position before an impartial person or group of people, usually a judge or jury, who attempt to determine the truth and pass judgment accordingly. It is in contrast to the inquisitorial system used in some civil law systems where a judge investigates the case.

Jurisdiction is the practical authority granted to a legal body to administer justice, as defined by the kind of case, and the location of the issue. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.

A plea bargain is any agreement in a criminal case between the prosecutor and defendant whereby the defendant agrees to plead guilty or nolo contendere to a particular charge in return for some concession from the prosecutor. This may mean that the defendant will plead guilty to a less serious charge, or to one of the several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence.

Judicial discretion is the power of the judiciary to make some legal decisions according to their discretion. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence. Where appropriate, judicial discretion allows a judge to decide a legal case or matter within a range of possible decisions.

Fine (penalty) Financial penalty

A fine or mulct is a penalty of money that a court of law or other authority decides has to be paid as punishment for a crime or other offence. The amount of a fine can be determined case by case, but it is often announced in advance.

Criminal justice System of governments directed at mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts

Criminal justice is the delivery of justice to those who have committed crimes. The criminal justice system is a series of government agencies and institutions. Goals include the rehabilitation of offenders, preventing other crimes, and moral support for victims. The primary institutions of the criminal justice system are the police, prosecution and defense lawyers, the courts and prisons.

District attorney In the United States, represents the government in the prosecution of criminal offenses

In the United States, a district attorney (DA), state's attorney or state attorney is the chief prosecutor for a local government area, typically a county. The exact name and scope of the office varies by state. Alternative titles for the office include county attorney, commonwealth's attorney, solicitor, or county prosecutor.

Probation in criminal law is a period of supervision over an offender, ordered by the court instead of serving time in prison.


A prosecutor is a legal representative of the prosecution in countries with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial against an individual accused of breaking the law. Typically, the prosecutor represents the government in the case brought against the accused person.

Nolle prosequi, abbreviated nol or nolle pros, is legal Latin meaning "to be unwilling to pursue". In Commonwealth and US common law, it is used for prosecutors' declarations that they are voluntarily ending a criminal case before trial or before a verdict is rendered; it is a kind of motion to dismiss and contrasts with an involuntary dismissal.

Law enforcement in France Overview of law enforcement in France

Law enforcement in France has a long history dating back to AD 570 when night watch systems were commonplace. Policing is centralized at the national level. Recently, legislation has allowed local governments to hire their own police officers which are called the "police municipale".

Mandatory sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are instituted to expedite the sentencing process and limit the possibility of irregularity of outcomes due to judicial discretion. Mandatory sentences are typically given to people who are convicted of certain serious and/or violent crimes, and require a prison sentence. Mandatory sentencing laws vary across nations; they are more prevalent in common law jurisdictions because civil law jurisdictions usually prescribe minimum and maximum sentences for every type of crime in explicit laws.

Informant Person who provides privileged information about a person or organization to an agency

An informant is a person who provides privileged information about a person or organization to an agency. The term is usually used within the law enforcement world, where they are officially known as confidential human source (CHS), or criminal informants (CI). It can also refer pejoratively to someone who supplies information without the consent of the involved parties. The term is commonly used in politics, industry, entertainment, and academia.

In the United States criminal justice system, a Courtroom Workgroup is an informal arrangement between a criminal prosecutor, criminal defense attorney, and the judicial officer. This foundational concept in the academic discipline of criminal justice recharacterizes the seemingly adversarial courtroom participants as collaborators in "doing justice." The courtroom workgroup was proposed by Eisenstein and Jacob in 1977 to explain their observations of the ways courts, especially lower level courts, actually come to decisions.

In law, selective enforcement occurs when government officials such as police officers, prosecutors, or regulators exercise enforcement discretion, which is the power to choose whether or how to punish a person who has violated the law. The biased use of enforcement discretion, such as that based on racial prejudice or corruption, is usually considered a legal abuse and a threat to the rule of law.

A criminal defense lawyer is a lawyer specializing in the defense of individuals and companies charged with criminal activity. Some criminal defense lawyers are privately retained, while others are employed by the various jurisdictions with criminal courts for appointment to represent indigent persons; the latter are generally called public defenders. The terminology is imprecise because each jurisdiction may have different practices with various levels of input from state and federal law or consent decrees. Some jurisdictions use a rotating system of appointments, with judges appointing a private practice attorney or firm for each case.

Criminal sentencing in the United States

In the United States, sentencing law varies by jurisdiction. Since the US Constitution is the supreme law of the land, all sentences in the US must conform to the requirements of the Constitution, which sets basic mandates while leaving the bulk of policy-making up to the states.

Paul G. Cassell American judge

Paul George Cassell is a former United States District Judge of the United States District Court for the District of Utah, who is currently the Ronald N. Boyce Presidential Professor of Criminal Law and University Distinguished Professor of Law at the S.J. Quinney College of Law at the University of Utah. He is best known as an expert in, and proponent of, victims' rights.

Human rights in Argentina

The history of human rights in Argentina is affected by the Dirty War and its aftermath. The Dirty War, a civic-military dictatorship comprising state-sponsored violence against Argentine citizenry from roughly 1976 to 1983, carried out primarily by Jorge Rafael Videla's military government. However, the human rights situation in Argentina has improved since.

Plea bargaining in the United States is very common; the vast majority of criminal cases in the United States are settled by plea bargain rather than by a jury trial. They have also been increasing in frequency—they rose from 84% of federal cases in 1984 to 94% by 2001. Plea bargains are subject to the approval of the court, and different States and jurisdictions have different rules. Game theory has been used to analyze the plea bargaining decision.


  1. See Websters Third New International Dictionary (unabridged).
  2. Thorburn, Malcolm (Apr 2008). "Justifications, Powers, and Authority". Yale Law Journal. 117 (6): 1070–1130. doi:10.2307/20454675. JSTOR   20454675.
  3. 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.
  4. Merriam-Webster. "Crime". Merriam-Webster.com. Retrieved 10 October 2014.
  5. Thorburn, Malcolm (Apr 2008). "Justifications, Powers, and Authority". Yale Law Journal. 117 (6): 1070–1130. doi:10.2307/20454675. JSTOR   20454675.
  6. Cynthia Lum (2011) The Influence of Places on Police Decision Pathways: From Call for Service to Arrest, Justice Quarterly, 28:4, 631-665
  7. MISNER, RL. RECASTING PROSECUTORIAL DISCRETION. Journal of Criminal Law & Criminology. 86, 3, 717, 1996. ISSN   0091-4169.
  8. JAROS, DM. PREEMPTING THE POLICE. Boston College Law Review. 55, 4, 1149-1195, Sept. 2014. ISSN   0161-6587
  9. "Archived copy". Archived from the original on 2013-07-18. Retrieved 2013-12-05.CS1 maint: archived copy as title (link)
  10. LAFRANCE, TC. Targeting discretion: an exploration of organisational communication between rank levels in a medium-sized Southern US police department. International Journal of Police Science & Management. 13, 2, 158-171, 2011. ISSN   1461-3557.
  11. "Definition of discretion is the better part of valor - idiom". Webster's Dictionary . Merriam-Webster . Retrieved February 17, 2019.
  12. "Meaning of discretion is the better part of valour in English". Cambridge Dictionary . Cambridge University Press . Retrieved February 17, 2019.
  13. "Henry IV, Part 1 - work by Shakespeare". Encyclopædia Britannica Online . Encyclopædia Britannica, Inc. Retrieved February 17, 2019.
  14. "The First part of King Henry the Fourth - Act 5, Scene 4". shakespeare.mit.edu. The Tech . Retrieved February 17, 2019.
  15. Holy Bible: Standard Text (Benjamin Blayney, ed., Holy Bible: Standard Text, Oxford University Press, 1769. Printed by T. Wright and W. Gill, printers to the University. ed.). Oxford University Press. 1769. Retrieved 1 June 2020.