Meta-Analysis: Discretion in Criminal Justice System - Research Paper Example

Meta-Analysis: Discretion in Criminal Justice System The debate on discretion in criminal justice system has become hot in the aftermath of the Supreme Court judgment in Kimbrough v. United States, which held that judges could exercise discretion based on a “policy disagreement” with the United States Sentencing Guidelines (McKay, 2011, p.1423). In this backdrop, government and judiciary have embarked on a path of conflict, when it came to defining judicial discretion (McKay, 2011, p.1423). Also, the economic turmoil that has affected the country now and again has been instrumental in bringing to surface the threats and advantages of judicial as well as governmental discretion in crisis situations (Zywiscki, year). The basic limitations inherent to human nature when it comes to sentencing and the fallibility of any strict law ever made by humans have been the underlying basic premises to this discourse (Heffernan, 2011). But many researchers (the author of 'Retreat', year; McKay, 2011; Zywiscki, year) have gone investigating into recent judgments and social circumstances to link this theoretical base to practical problems and solutions. When recent research on the topic is taken as a whole, it can be seen that majority of studies have stressed the need for judicial discretion to be given an upperhand over police and administrative discretion. This is in cognizance with the spirit of the supremacy of the rule of law. While reviewing all this research that has been carried out into the area of judicial discretion, this paper hypothesizes that in view of the individual nature of each case involved and in cognizance with the existing legal framework, the prevailing ambiguities that restrict judicial discretion has led to the citizens being denied their right to the rule of law. Researchers like Hirschel, Buzawa, Pattavina and Faggiani (2008) along with -----the author of 'Retreat'- (year) and Cross and Newbold (2010) have put forth the view that the issue of judicial discretion has to be viewed as a constitutional mandate as against the ongoing discussions on police discretion. Hirschel, Buzawa, Pattavina and Faggiani (2008) have discussed this matter with respect to the newly given powers of “the police to make warrantless arrests in cases of domestic violence” (p.255-6). This study has adopted quantitative methods to collect and analyze data and has provided extensive analysis of the available data of the chosen study period. In this manner, this study has provided conclusive empirical evidence to suggest that enhanced police discretion has led to gender disparities as far as domestic violence-related arrests were concerned (Hirschel, Buzawa, Pattavina and Faggiani, 2008, p.297-298). By revealing this disparity, this study has implied the need for judicial discretion rather than police discretion (Hirschel, Buzawa, Pattavina and Faggiani, 2008). But one limitation of this study is in that it has not considered the influencing factors other than the new arrest laws while analyzing the arrest data(Hirschel, Buzawa, Pattavina and Faggiani, 2008). Meanwhile, Cross and Newbold (2010) have examined the specific case of New Zealand and tried to find out to what extent the police force complied with the new “pro-arrest” policies of the government. What they (Cross and Newbold, 2010) have found out is that owing to “the complexities of domestic violence situations”, the police has not been able to comply frequently with the new pro-arrest laws. This empirical study has used interviews and observational research along with review research as its study methods and has thus provided through triangulation, enough proof to show that presumptive arrest policies should be a”accompanied by proper training, monitoring and oversight”, the oversight being the mandate of the judiciary (Cross and Newbold, 2010, p.71). Chan (2011) has also dealt with the issue of police discretion from a different angle, in connection with racial profiling, which is a potentially dangerous menace in the current scenario. Citing many studies that suggest, “police officers often form stereotypical opinions about the criminality of certain ethnic groups”, Chan (2011) has stressed the need to change the underlying values of police subculture (p.76-77). Thus this study has directly called for withdrawing police discretion as much as possible and indirectly taken a stance in favor of the rule of law and accompanying judicial discretion (Chan, 2011). This review-based study has clearly demarcated the various aspects of racial profiling though not provided ample empirical proof for the same (Chan, 2011). The review-based study carried out by McKay (2011) has been the most comprehensive and recently relevant one while examining the topic of judicial discretion. McKay (2011) has examined the “sentencing disparities” that infest the fast-track programs, and subsequently supported a “pro-discretion stance” in his paper published in 2011 (p.1423). McKay (2011) has in this study, extensively analyzed the prevailing scenario of judicial sentencing discretion dwelling deeply upon the United States guidelines and the landmark cases including Kimbrough v. United States and United States v. Booker. The historical context is explained by tracing a major shift that occurred in 1984, when the Sentencing Reform Act was passed to restrict the broad discretion commanded by judges which made sentences highly arbitrary (McKay, 2011, p.1425). The constitution of the United States Sentencing Commission as directed by the Act and the subsequent formulation of the guidelines in 1987, the step by step process by which the guidelines are applied to specific cases, the situation in which the guidelines were changed in status from mandatory to advisory as a result of the constitutional contradictions noticed during Booker case, and the “downward departure” from guidelines in Kimbrough case citing the “greater than necessary” sentence-implications of the guidelines are discussed in chronological order by McKay (2011, p.1425-1430). One major reason of departure from the guidelines cited by the court, according to McKay, was that the “terms of the Act only mandated maximum and minimum sentences, and said nothing about appropriate sentences within this range”, which in turn often resulted in making the prescribed sentence “greater than necessary” (McKay, 2011, p.1430). The history and evolution of fast-track sentencing is further elaborated to see that though the overwhelming backlog of cases demanded a fast-track system, once in place, it created a sentencing disparity (McKay, 2011, p.1433). It is especially noted that the departure rate from the guidelines went on increasing under the fast-track system (McKay, 2011, p.1433). The official approval of fast-track system in 2003 and the resulting decrease in average jail-term served by those who were convicted by fast-track courts are explained by McKay (2011) with a solid analysis of previous research (p.1436). How the Kimbrough case has interacted and changed the whole sentencing and discretion scenario is the core area of analysis in this paper (McKay, 2011). The circuit-split is presented as the important consequence (McKay, 2011, p.1438). The pro-discretion and anti-discretion positions are compared in the backdrop of the distinction among policy, “implicit directive” and their practice by McKay (2011, p.1438). Citing specific example cases, it is further shown which of the circuits were anti-discretion and which were pro-discretion and the reasons cited behind these positions (McKay, 2011, p.1438-1443). McKay (2011) has used the positions held by the Solicitor General and subsequently the Supreme Court with respect to career-offenders to argue that as stated by the anti-discretion camp, the Protect Act is not a “binding congressional policy” (p.1444). This is the major ground on which McKay (2011) rejects the anti-discretion stance (p.1444). To prove his position to be correct further, McKay (2011) has also countered the “judge-created disparity” argument of the anti-discretion camp by saying that a “judge-created disparity” is a preferable vice to geographical and prosecutor-created disparities brought about by the fast-track system itself (p.1448). Thus McKay (2011) has presented “judge-created disparity” as a “necessary” and “acceptable cost” that comes along with the “remedy” (p.1444-1448). He (McKay, 2011) has also pointed out that both the options of making fast-track system applicable to all districts and completely “eliminating” the fast-track system are not legally viable, the only option is to accept the possible necessary vice of “judge-created disparity” (p.1450). Yet another argument in favor of anti-discretion stance being the possibility of prosecutorial discretion getting undermined under judicial discretion, McKay (2011) has defended his position saying that “sentencing is ultimately a judicial function” (p.1450). McKay (2011) has also rejected the claim of dissimilarity between fast-track and non-fast-track defendants, as put forth by anti-discretion camp (p.1451-1452). This is done based on the logic that a defendant accepts the fast-track solution only expecting reciprocation from the state in the form of a reduced sentence period (McKay, 2011, p.1452). From the policy perspective also, McKay (2011) has examined the issue and concluded that Kibrough case has provided enough flexibility to the judicial decisions to invoke legal provisions other than the guidelines “to grant a downward departure” (p.1453). Also McKay (2011) has pointed to a possible danger of limiting judicial discretion in the following lines: In the absence of an affirmative grant of discretion to consider the fast-track disparity, sentencing judges may mask their downward departures as individualized determinations. This will subject these sentences to an undeservedly high standard of review on appeal, ironically enhancing the ability of district court judges to sneak fast-track motivated downward departures past circuits who have taken the anti-discretion position (p.1454). From all the above given investigations, McKay (2011) has arrived at the conclusion that a pro-discretion stance is legally correct and it also is more true to the core of the policies involved. McKay (2011) has also suggested that either the pro-discretion stand be accepted by anti-discretion circuits or the Supreme Court should intervene to “overrule […] [the] precedent” set by them (p.1455). In this paper, McKay (2011) has adopted the methodology of review research and has done a historical review of the topic selected. But the limitation of this study is in that it has taken a pre-investigative position and then tried to find out supporting evidence from among the facts available. Hence this is a closed rather than open investigation. The topic discussed in this study has certain inherent ambiguity that remains to be resolved through legal and policy-level clarification from a high authority like the Supreme Court or the Congress itself. Though McKay (2011) has put forth a strong and relevant argument in favor of pro-discretion stance, the inherent ambiguity regarding the guidelines and the contradiction between the fast-track and non-fast-track systems are bound to remain until such clarification is made. Another limitation of this study is that no empirical data has been collected or analyzed as part of this research venture, which makes the subjective element in it a prominent factor. Another paper on discretion of the criminal justice system, written by Sinead Heffernan (2011), has examined this issue from the basic premise that though “law is seen as coherent […] [,] there is wide scope of interpretation that occurs by judges when cases go before them” (Heffernan, 2011, p.17). The research method in this paper is case study research where the researcher has done extensive studies of three Irish cases to show how and how far the judges exercise their discretionary powers and how this gets reflected in the entire legal system (Heffernan, 2011). The question that this study tries to answer is whether the discretion and interpretation exercised by judges undermine the essence of law (Heffernan, 2011). The cases under investigation in this paper are, O’Donoghue, Anabel and the Nally (Heffernan, 2011, p.17). While discussing the background of the study and its scope, Heffernan (2011) has dealt with the topic, sentencing (Heffernan, 2011, p.17). It is noted that regarding the sentencing in Ireland, much is left to the judges’ discretion just because there are many social and circumstantial factors involved as is admitted by the judiciary itself in the judgments in many specific cases (Heffernan, 2011, p.18). As an introduction to the topic, it is also stated that “the problem [of discretion] lies in the tensions within the legal form itself, tensions between abstract individualism as a basis for punitive philosophy and the social, contextual, particular character of the sentencing process on the other” (Heffernan, 2011, p.19). Thus the entire issue is placed in a philosophical realm and is examined against the basic principles of law itself (Heffernan, 2011). Heffernan (2011) has briefly described each of the three cases and then raised questions on how far the social prejudices of the judges as well as the narrowing down and widening of the case scenario, have influenced and determined the outcome. The case studies cited by Heffernan (2011) throw light upon issues like, the socio-economic position of the accused influencing the judge to overlook certain important and grave aspects of the act of crime carried out, the widening of the crime scenario to include prior and posterior incidents to crime and its influence on the judgment, and the social context influencing the judgment. But the limitations of this study are that, 1) it does not provide any empirical evidence, 2) it is limited to only three case studies which are in no way representative of the general picture, 3) the analysis of the cases are potentially subjective, and 4) no serious attempt has been made by the researcher to compare the data of his analysis with the data from pre-existing studies. Given the fact that each and every case that comes for judgment before the judicial system are unique owing to the human element involved, the case study research cannot be considered as the apt methodology for exploring this topic. As far as the matter of discretion is concerned, this study implies an anti-discretion position but yet present it as a non-resolvable issue. This is so because the researcher has attributed the discretion and interpretation involved to human nature itself and viewed it as an incurable evil. Hence this study in no way serves any purpose to improve the existing legal system. Zywicki (year) has approached this topic from a different angle investigating how in historical moments of economic turmoil, the rule of law is undermined by government discretion and what could be the role of the court in such instances. Zywicki (year) derived four core propositions for this paper, namely, 1) it is in the time of economic uncertainty that government discretion has to be minimized by controlling it with rule of law, 2) this is important to restrict politicians and special interest groups from pursuing their selfish motives, 3) control of government discretion during crisis is also necessary in the background that such discretion will make irrevocable changes to the “pre-crisis level” balance of rule and exception, and 4) government discretion as a “short term intervention” will create “moral hazards” that “powerful special interest groups” could exploit (p.196). This paper is an extensive review of the discretionary actions carried out by the government during economic crises and has detailed a number of specific instances to prove the point including new legislations that contradict prevailing legal norms on contract and property rights (Zywiscki, year, p.196-200). More specific examples follow which show how property and contract rights were violated and one example has been the financial bailout of big corporate companies like General Motors (Zywiscki, year, p.200). Moving in history from the recent financial bailout of big companies to the great depression legislations, it is explained how governmental discretion often turn into political opportunism (Zywiscki, year, p.202-205). In the last part of the paper, the author (Zywiscki, year) has redirected his attention back to the current economic crisis and citing ample examples, shown how the crisis prompts government to exercise great discretionary powers opening up ways of financial abuse as well (p.205-212). The methodology of this study has been of review research mode and as far as judicial discretion is concerned, the study limits it to the introductory and conclusion paragraphs (Zywiscki, year). Though it is suggested that judiciary put a rein on governmental discretion during periods of economic crisis, it is not further elaborated how (Zywiscki, year). The role of judiciary is not even discussed much in this regard. Another study on the same topic was from ---------- (year) and he has deliberated on the dangers of the retreat of the judiciary from close monitoring and guiding the police. The importance of this study to this paper is that it reveals how yet another branch of the executive, if not monitored and controlled as per the rule of law, could weaken the rule of law itself which they are to consolidate (Author, year). The recent phenomenon of judges showing reluctance to put a limit on “police discretion” is cited to justify the purpose of this study and review research and case study research have been the methodologies adopted (Author, year, p.1707). It is pointed out, the reason behind this reluctance has been the notion that while in action, the police personnel are under tremendous stress making split second decisions (Author, year, p.1707). ----- (year) has set the premise of his argument around the dangers of police discretion that include, violence evoked by high work solidarity, low tolerance towards questioning of the level of professionalism they have, the assimilation of violence as a value to deter crime, and defensiveness of “their own superiority” (p.1708-1710). Positive and democratic changes that have happened in time to the police force and scope for allowing certain amount of discretion are also discussed (Author, year, p.1710-1715). But the author (----, year) has conclusively inferred that even as the police force gets changed towards better values, it is advisable that the judiciary continue with its “oversight” and regulation paradigm (p.1715). Regarding the matter of exercise of “excessive force” by the police, ---- (year) has argued that the judiciary is at present shying away from legally discussing this matter (p.1721). An example of this is illustrated in that despite the existence of the exclusionary rule instructing, “the courts must bar evidence acquired in violation of them”, the courts never use them (----, year, p.1719). The second case study considered by the researcher (----, year) has been “the law of deadly force” which is examined in the context that “in the United States, there is little legal doctrine governing polics use of excessive force” (p.1721). In this matter also, the courts are accused of shying away from addressing the issue (----, year, p.1722). The researcher (----, year) has concluded his arguments strongly suggesting that the courts should act as the constitutional authority to protect the citizens from the use of excessive force by the police and thus rules out the scope for police discretion (p.1726-7). Sekhon (2012) has also called for clamping judicial control over the misuse of police discretion in his study on redistributive policing. It is the judicial approach to police discretion that is put under scanner in this study (Sekhon, 2012). Instead of considering this matter as one that concerns individual police officers, the judiciary is requested to see the whole issue in the context of “arrest[...] […] as a policy making device with broad distributive consequences” (Sekhon, 2012, p.1172). The second part of this research is an elaborate review of existing research, relevant recent legislations, and related court cases thus making this study a combination of review research and case study research (Sekhon, 2012). This study has provided useful insights into the dangers posed to democracy and rule of law by police discretion when it is practiced without judicial oversight (Sekhon, 2012). References Chan, J. (2011) Racial profiling and police subculture, Revue Canadienne de criminologie et de justice pe'nale, volume (issue), pp.75-78). Cross, J. and Newbold, G. (2010) Presumptive arrest in partner assault: Use of discretion and problems of compliance in the New Zealand police, The Australian and New Zealand Journal of Criminology, 43 (1), pp.51-75. Heffernan, S. (2011) “…one dube fits all?”, Indian Journal of Political Science, 7 (1), pp.17-24. Hirschel, D. Buzawa, E. Pattavina, A. and Faggiani, D. (2008) Domestic violence and mandatory arrest laws: To what extent do they influence police arrest decisions?, The Journal of Criminal Law and Criminology, 98 (1), pp.255-298. McKay, T (2011) Judicial discretion to consider sentencing disparities created by fast-track programs: Resolving the post-Kimbrough circuit split, American Criminal Law Review, 48, pp.1423-1455. Sekhon, N.S. (2012) Redistributive policing, The Journal of Criminal Law and Criminology, 101 (4), pp.1171-2012. Zyciwski, T. (year) Economic uncertainty, the courts, and the rule of law, Harvard Journal of Law & Public Policy, 35, pp.195-212. Author last name, Author initials (year) Notes: Retreat: The Supreme Court and the new police, Name of the Journal, volume (issue number), pp.1706-1727). Read More