This paper examines the role of discretion in the American criminal justice system and its relationship to systemic discrimination. It argues that while discretion — exercised by witnesses, police officers, prosecutors, juries, and judges — is often presented as a safeguard for individualized justice, it simultaneously opens the door for personal and societal bias to influence outcomes. Drawing on examples such as sentencing disparities tied to the race and gender of victims, and the historical crack-versus-powder cocaine sentencing gap, the paper contends that allowing broad discretion effectively allows bias to operate unchecked. The paper concludes that while eliminating discretion alone will not end discrimination, standardizing sentencing for equivalent offenses is one meaningful step toward a fairer 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 examining the criminal justice system is that exercised by police officers, prosecutors, juries, and judges — actors who determine the fate of an accused. Police officers determine whether to arrest a suspect and, in the case of lesser crimes, whether or not to initiate charges. Prosecutors determine whether to prosecute, and with what crime the defendant will be charged. Judges and juries exercise discretion regarding guilt, but also in terms of sentencing. All of these decisions significantly impact an accused person.
"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 in it, and thus we see ourselves in deep relief" (Carl, 2011). 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 that discrimination is systemic or the result of wrongly applied discretion. In fact, the very definition of criminality — of deviance — is itself a form of discretion. It appears, in reality, to be a combination of both factors. What becomes clear, however, is that when people in positions of power within the criminal justice system are allowed to exercise discretion, they tend to do so in a discriminatory manner.
Consider the scenario of a battered wife killing her abusive husband. The poor Black woman living in poverty, who is more likely to have a criminal history simply because she is both poor and Black, and who strikes back and kills her abuser is more likely to be arrested than the affluent white woman who does the same thing. Prosecutors are also likely to treat the two women differently, in part because of their differential access to quality defense attorneys. Therefore, the Black woman is far more likely to face charges for the offense. However, if convicted, the white woman — who is more likely to have been married to a white man — may actually receive a harsher sentence, because she has killed a white male. The reality is that both women committed the same act and should receive the same punishment. Allowing discretion is, in effect, allowing bias.
"Critiques Supreme Court view that discretion prevents bias"
"Crack cocaine sentencing as structural discrimination example"
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