Explain what judicial discretion means and how it applies to legal situations. Is it serving its purpose?

Question

Explain what judicial discretion means and how it applies to legal situations. Is it serving its purpose?

Answer 1

Judicial discretion is a judge's (or the court's) ability to take action or make a determination outside the strict guidance of the law.  This is most important in areas of trial planning, admission of evidence, and criminal sentencing.

It allows a judge to have some power over how his/her court is run and the effects of his/her judgments.

There are pros and cons.  Briefly, the biggest con is probably inconsistency.  We'd like to think that everyone is treated equally by the courts.  However, different results may occur for different people when a judge is a jerk or is having a bad day.  Different judges will exercise their discretion differently.

The biggest pro is probably flexibility.  It prevents strict application of laws which are sometimes vague, or may not apply to a certain situation.  Sometimes justice may require flexibility.  Also, the legislature (who makes the laws) cannot foresee every avenue, and this flexibility allows the judge to fill in the gaps.

This discretion is also checked by the appellate courts.  If a judge exercise discretion where he/she has no right, or goes too far astray, his/her decision can be reversed for "abuse of discretion."

Answer 2

A mandatory sentence is a court decision setting where judicial discretion is limited by law. Typically, people convicted of certain crimes must be punished with at least a minimum number of years in prison. Mandatory sentencing laws vary from country to country.

Adherents of mandatory sentencing believe that it reduces crime and ensures uniformity in sentencing. Potential criminals and repeat offenders are expected to avoid crime because they can be certain of their sentence if they are caught.

Arguments against mandatory sentencing include claims that it is unfair and can cause overcrowding in prisons. It is widely argued that such laws unfairly target disadvantaged minority groups who are more likely to be imprisoned because they are most likely to come into contact with the justice system by committing crimes. In the United States critics have argued that laws designed to counter drug overlords were trapping minor offenders and imprisoning some for life. Opponents say that uniform sentencing cannot be fair for non-uniform crimes and that it is not possible to build a pre-determined minimum sentence that can cover all circumstances. Further, sentences do not necessarily encapsulate the full impact on a criminal defendant - social stigma and collateral consequences of criminal charges can penalize a defendant beyond the terms of the sentence itself.

In the United States, mandatory sentencing laws are being repealed. An academic study of the Massachusetts prison population published by Harvard in 1997 found that nearly half of the offenders sentenced to long mandatory-minimum terms for drug related offenses had no record of violent crime. The study concluded that jailing nonviolent drug offenders does not cure drug addiction and that the laws were "wasting prison resources on nonviolent, low-level offenders and reducing resources available to lock up violent offenders". Cases such as that of Hamedah Hasan have received some media attention and there are organizations pushing for the review of mandatory sentencing laws.

Opposition to juvenile mandatory sentencing in Australia and a harshly critical United Nations report caused the government to intervene in the Northern Territory in 2000. The debate became particularly heated in 2001 after a young aboriginal/indigenous man committed suicide whilst serving time for stealing stationery worth AUS$90. The Northern Territory repealed their mandatory sentencing laws in October 2001. An analysis of the effects of mandatory sentencing concluded that indigenous people were heavily over-represented, the length of the minimum sentence was not an adequate deterrent, the effect on prison population was unmanageable and that the level of custodial sentencing rose by 50% under mandatory sentencing.

Australia, Mexico, New Zealand and some other countries employ a system of mandatory restorative justice, in which the criminal must apologize to the victim or provide some form of reparation instead of being imprisoned for minor crimes. In serious crimes, some other form of punishment is still used.