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
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
s to exercise discretion is an aspect of
judicial independence Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan inte ...
. Where appropriate, judicial discretion allows a judge to decide a legal case or matter within a range of possible decisions.
However, where the exercise of discretion goes beyond constraints set down by
legislation, by
binding precedent, or by a
constitution, the court may be abusing its discretion and undermining the
rule of law
The rule of law is the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws, including lawmakers and leaders. The rule of law is defined in the ''Encyclopedia Britannica ...
. In that case, the decision of the court may be ''
ultra vires'', and may sometimes be characterized as
judicial activism.
In 1824, US Chief Justice
John Marshall
John Marshall (September 24, 1755July 6, 1835) was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longes ...
wrote the following on this subject:
Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.
Concerns with regard to
recidivism
Recidivism (; from ''recidive'' and ''ism'', from Latin ''recidīvus'' "recurring", from ''re-'' "back" and ''cadō'' "I fall") is the act of a person repeating an undesirable behavior after they have experienced negative consequences of th ...
and other
law and order issues have led to the introduction of
mandatory sentencing. E.g.
three-strikes laws
In the United States, habitual offender laws (commonly referred to as three-strikes laws) have been implemented since at least 1952, and are part of the United States Justice Department's Anti-Violence Strategy. These laws require a person who i ...
and most
sex offender registry laws in US are examples of laws carrying severe consequences, and which does not leave room for sentencing judges to consider the actual gravity of the offense, thus significantly limiting judicial discretion in
sentencing
In law, a sentence is the punishment for a crime ordered by a trial court after conviction in a criminal procedure, normally at the conclusion of a trial. A sentence may consist of imprisonment, a fine, or other sanctions. Sentences for mult ...
. Introduction of mandatory minimum in criminal sentencing is often viewed as a shift of judicial power from judges to
prosecutor
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...
s, who are capable of affecting the length of potential sentence through their
charging decision, e.g. filing
charges on
lesser included offense and dropping the charges carrying mandatory minimum sentences.
Mandatory sentencing laws have been particularly popular among legislators in the United States. This has provoked formation of non-profit organizations such as
Families Against Mandatory Minimums,
Women Against Registry and
RSOL to lobby for reinstatement of judicial discretion in criminal sentencing.
See also
*
Aharon Barak
*
Close case
References
{{Reflist
Further reading
*Gelsthorpe, Loraine and Padfield, Nicola.
Exercising Discretion: Decision-making in the criminal justice system and beyond' (Willan Publishing 2003).
Criminal law
Judiciaries
Legal doctrines and principles