Sample Law Paper on Discretion and Ethical Decision Making

Sample Law Paper on Discretion and Ethical Decision Making

Discretion is an important, powerful, and unpredictable aspect of modern policing and law enforcement in many parts of the world. There is no doubt that there has been too much discretion in the U.S. criminal justice system. This is in contrast to the opinion of approximately 66 percent of Americans who stated in 2003 that the U.S. criminal justice system was fair. In 1789, American government enacted a law which granted exclusive power to the criminal justice system to perform its duties and responsibilities. Over the years, prosecutorial discretion has seen prosecutors determine the cases they ought to pursue or accept and determine the fates of a majority of criminal offenders (Krauss, 2009). Similarly, the current criminal justice system grants police officers the discretion to make an interpretive judgment on their own, which is unacceptable to some extent. That freedom is unacceptable because it results in the selective enforcement of laws coupled with discrimination against offenders.

It should be noted that in the criminal justice system of the United States, selected roles such as prosecution have more discretion than other roles such as law enforcement functions. According to the U.S. federal law, a public prosecutor has the discretion to decide whether or not to prosecute an offender. Additionally, the prosecutor determines whether there is sufficient evidence by reviewing information brought in by an arresting officer. Once the quality of the evidence and other factors surrounding the evidence are examined, the prosecutor may increase, reduce, or dismiss the charges brought in by a police officer. At times, prosecutors seek for more information to make suitable and appropriate decisions as per the law (Krauss, 2009). Over the years, there has been immense concentration on discretion in particular roles such as prosecution. Moreover, it is important to note that prosecutors have such concentrated discretionary power because of two primary requirements of the American criminal justice system. First, the American federal law permits prosecutors to make many decisions that are not subject to review (Krauss, 2009). Second, some features of the modern criminal justice system enlarge prosecutorial discretion in practice, thereby showing the scope of contemporary prosecutorial discretion.

The move to limit the amount of discretion in the criminal justice system would be desirable because it would lead to acceptable or fair enforcement of laws, especially when dealing with criminals. Also, limiting the amount of discretion would help avoid unnecessary arbitrariness in the legal decision making within the criminal justice system. In this line, it can be argued that unregulated discretionary powers may go against due processes. From a personal standpoint, provision of recommendations to reform policy and to help formulate new guidelines would be crucial to limiting the amount of discretion. The legal constraints that exist stem from other areas of law such as equal protection and due process as these limitations rarely lead to misconduct claims. Doing away with or limiting the amount of discretion would be crucial to the promotion of justice. One of the effects of limiting the amount of discretion is that the institutions such as legislative bodies would have a tough time formulating laws of the country. In essence, in typical situations, legislative bodies have exclusive powers to enact laws without involving members of the public, and this is when discretion can be observed. Moreover, limiting the amount of discretion would result in poorly-drafted and obsolete legislation.

 

 

 

References

Krauss, R. (2009). The theory of prosecutorial discretion in federal law: Origins and developments. Seton Hall Circuit Review6(1). Retrieved from https://law.yale.edu/system/files/area/conference/ilroundtable/ILR13_CBRebeccaKrauss.pdf