Discretion in the Legal System Discretion arises any time an actor in the criminal justice system has a choice about how to treat a suspect. At a very basic level, even witnesses to crimes exercise discretion, because they choose whether or not to report those crimes. Crime victims exercise discretion, by choosing whether or not to pursue prosecution. However, the discretion most people consider when looking at the criminal justice system is that discretion exercised by police officers, prosecutors, juries, and judges, which determines the fate of an accused in the criminal justice system. Police officers determine whether to arrest a suspect, and, in the case of lesser crimes, whether or not to initiate charges against the suspect. Prosecutors determine whether to prosecute a suspect, and the crime with which the defendant will be charged. Judges and juries exercise discretion regarding guilt, but also in terms of sentencing. All of these factors significantly impact an accused.

"A criminal justice system is a mirror in which a whole society can see the darker outlines of its face. Our ideas of justice and evil take on visible form...

When one examines the American criminal justice system, this reality becomes painfully clear. A society that, as a whole, values brown skin less than white skin can be expected to have higher rates of incarceration of brown people, and the United States meets those expectations. There is tremendous discrimination in the criminal justice system, and it is difficult to say whether the discrimination is systemic or the result of wrongly-applied discretion. In fact, the definition of criminality, of deviance, is, in and of itself, a form of discretion. It actually appears to be a combination of both factors. However, it becomes clear that, as a group, when people in positions of power in the criminal justice system are allowed to exercise discretion, they do so in a discriminatory manner.
To many people, including the Supreme Court, discretion is one of the solutions to discrimination in the criminal justice system. For example, capital punishment schemes are only approved if they permit a certain level of discretion for the judge and jury; there are no mandatory capital punishment statutes allowed. This is so that a fact finder can consider an individual defendant before pronouncing a sentence. The problem is…