Recent years have shown some, though not many, products of true interdisciplinary research collaborations between scholars of criminal law and criminologists. Looking at the products of these successful collaborations, they always evolve around one central concept or phenomenon that resonates to both the field of the law and the field of the social sciences. The concepts of legitimacy and criminalisation are probably the most notable examples in that sense, with the first – legitimacy – definitely leading the charts due to a strong interdisciplinary research line on procedural justice. I wish to introduce another such concept that is perfectly fit, or better said for which it is necessary, to be subjected to an interdisciplinary analysis. It is the concept of discretion and discretionary decision-making.
While ordinary decision-making involves choosing when and how to intervene or act, discretionary decision-making refers to deciding to act or not when the circumstances legally allow for it. Discretion is a central and inevitable part of the criminal justice system. It translates rules into action and pertains to the process by which abstraction becomes actuality, involving people’s interpretation and choice, though its extent in any particular instance may vary enormously. It is, however, difficult to contemplate the making of any criminal justice decision that does not have at least a measure of discretion. Criminal justice systems rely heavily on official grants of discretionary power. Considerable discretionary authority is vested in criminal justice bureaucracies to make and to implement policy. It is in the everyday behaviour of judges, public officials, lawyers and others that the criminal justice system distributes its burdens and benefits to.
Indeed, discretionary power resides at all levels of criminal justice bureaucracies. From the most senior officials at the centre who frame broad policy, to the most junior recruits at street level whose work as screening or gatekeeping officials means direct contact with the issues in the real world. This, the point at which the criminal justice system touches the people or problems it is intended to address, is where the tensions, dilemmas and sometimes contradictions embodied in law and policy are worked out in practice. It is here that discretionary power not only permits the realization of the law’s broad purposes, but also allows or even encourages officials to sometimes distort the word or spirit of the law or policy, or to ignore them. And sometimes, of course, officials may assume a legal authority they do not in fact possess or deny an authority which is possessed. Much of the research on discretion and discretionary decision-making tends to focus on this last aspect: the injustice caused by the abuse or misuse of powers by law enforcement officials.
Whereas this risk is obviously inherent to the use of discretion, I find it important to stress that it is often too easily forgotten that discretion and discretionary decision-making are not only necessary for an efficient functioning of the criminal justice system, but that they also contribute to justice itself. Discretion is inherently neither good nor bad. It can be used skillfully to counter ill-conceived or vague laws and policies, or to minimize wrongful arrests and convictions, excessive punishments and failures to bring culpable offenders to justice. But it can be misused as well, with immediate harm to the victims of the abuse and causing long-lasting harm to the legitimacy of our system of criminal justice. Research on discretion is therefore vital to manage and control discretion and – as this closer look into the meaning of the concept hopefully shows – discretion is an interesting research topic for both scholars of criminal law and criminologists. Both disciplines – even more so than is the case with the concept of legitimacy which has both a legal and a social-scientifical “definition” - need each other in order to make sense of the complex triangular tension between legal framework, human interpretation and social setting within which the interpretation of the legal framework takes place. Yet so far, most of the available research does not seem to reflect this complexity at all.
Whether legal scholars have been concerned to clarify conceptual issues or to devise methods for the control of discretion, they have largely tended to think about the phenomenon as if it were not only a property of individual behaviour, but also essentially rule-guided, as if criminal justice decisions were the product of individual knowledge, reflection and reasoning. The effective constraints on discretion also tend to be conceived of in legal terms; fetters are usually to be found in rules, reasons, review, or some other apparatus of accountability. Legal scholars do not usually contemplate the many other forces that work upon criminal justice decision-makers. Discretion is obviously heavily implicated in the use of rules: interpretative behaviour is involved in making sense of rules, and in making choices about the relevance and use of rules. Yet, at the same time, it is clear that rules enter the use of discretion: much of what is often thought to be the free and flexible application of discretion by criminal justice actors, is in fact guided and constrained by rules to a considerable extent. These rules, however, cannot only be legal, but also personal, social and organisational in character.
Where legal scholars have usually shown little concern for the actual behaviour of those who exercise criminal justice discretion, social scientists have frequently been guilty of discounting the part played by legal rules in shaping discretion. Research suggests however, that law enforcement official’s discretion can be more clearly imprinted by the nature and form of the legal rules they work with than at first thought, even if such influence is not necessarily exerted in ways that might be intended by legislatures or legal bureaucracies. It is this kind of irony that suggests that closer empirical examination of criminal justice decision-making is needed.
All in all a lot of interesting and relevant research is carried out by both legal scholars and empirical scholars, yet there is little to no cross-fertilization which is exactly what is necessary to fully fathom the notion of discretion and discretionary decision-making. In my next blogs I will further illustrate this claim by focusing on counterterrorism, ethnic profiling and crimmigration.