Discretion in Criminal Procedure
The criminal process includes multiple stages at which the parties and criminal justice professional make crucial decisions which affect the progress of the case and its final outcomes. The decision making in criminal process includes discretional and formal approaches. The discretion is important in criminal justice because it provides balancing and promotion of interests in criminal procedure, along with rules of law (Samaha, 2010).
The difference between formal and informal decision making should be outlined in order to explain the role of discretion in criminal procedure. Formal decisions are made accordingly to the provisions of criminal procedural law, and discretionary decisions are made based on informal experience, judgment, and training of professionals. At each stage of the criminal procedure, some criminal justice professional has an opportunity to decide whether to start the criminal process, to continue, or to stop it (Samaha, 2010).
The policemen can decide whether to investigate or arrest suspects, and their decisions have significant consequences such as initiating or ending the formal criminal process. Prosecutors’ decisions relate to charging suspects or diverting them to social service agencies or even taking no action at all. Defendants make decisions on pleading guilty and avoiding trial (Samaha, 2010). Discretion in decision-making by judges is crucial because they might be independent in order to provide justice. However, discretion itself, without formal decisions been made, may lead to unjustified and prejudiced sentencing.
The tension between the exercise of discretion and formal application of law is the significant issue of criminal justice (Bushway & Forst, 2013). The criminal justice decision processes have the innocence or guilt as their outcome, and the sentencing should avoid personal reflections of judges. The written rules assure protection and certainty of justice, while discretion provides a balance of rights and protects from the unnecessary or inappropriate use of strict formal rules of law.
References
Bushway, S. D., & Forst, B. (2013). Studying discretion in the processes that generate criminal justice sanctions. Justice Quarterly, 30(2), 199-222.
Samaha, J. (2010). Criminal Procedure, 8th edition, Cengage …
