Judicial discretion is the power of the

judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...

to make some legal decisions according to their

discretion Discretion has the meaning of acting on one's own authority and judgment. In law, discretion as to legal rulings, such as whether evidence is excluded at a trial, may be exercised by a judge. Some view discretion negatively, while some view it ...

. Under the doctrine of the

separation of powers Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...

, the ability of judges to exercise discretion is an aspect of judicial independence. 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 Legislation is the process or result of enrolling, enacting, or promulgating laws by a legislature, parliament, or analogous governing body. Before an item of legislation becomes law it may be known as a bill, and may be broadly referred to ...

, by

binding precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great va ...

, or by a

constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed. When these princ ...

, the court may be abusing its discretion and undermining the rule of law. In that case, the decision of the court may be ''

ultra vires ('beyond the powers') is a Latin phrase used in law to describe an act which requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...

'', and may sometimes be characterized as

judicial activism Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...

. In 1824, US Chief Justice John Marshall 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 and other

law and order In modern politics, law and order is the approach focusing on harsher enforcement and penalties as ways to reduce crime. Penalties for perpetrators of disorder may include longer terms of imprisonment, mandatory sentencing, three-strikes laws a ...

issues have led to the introduction of

mandatory sentencing Mandatory sentencing requires that offenders serve a predefined term for certain crimes, commonly serious and violent offenses. Judges are bound by law; these sentences are produced through the legislature, not the judicial system. They are inst ...

. E.g. three-strikes laws 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. Introduction of mandatory minimum in criminal sentencing is often viewed as a shift of judicial power from judges to prosecutors, who are capable of affecting the length of potential sentence through their charging decision, e.g. filing charges on

lesser included offense In criminal law, a lesser included offense is a crime for which all of the elements necessary to impose liability are also elements found in a more serious crime. It is also used in non-criminal violations of law, such as certain classes of tr ...

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 Families Against Mandatory Minimums (FAMM) is an American nonprofit advocacy organization founded in 1991 to challenge mandatory sentencing laws and advocate for criminal justice reform. FAMM promotes sentencing policies that give judges the d ...

Women Against Registry Women Against Registry (W.A.R.) is a U.S. non-profit organization, based in Arnold, Missouri, which works to obtain changes in laws affecting sex offenders. Most W.A.R. members are mothers, wives, girlfriends, and other family members of persons c ...

and

RSOL The National Association for Rational Sexual Offense Laws (NARSOL) is a national civil rights and justice reform organization headquartered in Raleigh, North Carolina with operations based in Albuquerque, New Mexico and with affiliated organizati ...

to lobby for reinstatement of judicial discretion in criminal sentencing.

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See also

References

Further reading