As a political science student I have had a lot of exposure to discretion, but it seems that many of my peers only recently became aware of the term in conjunction with the Sandra Bland issue. Discretion plays a large role in the criminal justice system, and as it can greatly affect any person in the United States, I believe that everyone should have a sense of what it means and how it can apply to them. Discretion is defined as “an authority conferred by law to act in certain conditions or situations in accordance with an official’s or an official agency’s own considered judgment and conscience;” or put more simply, the freedom to decide what should be done in a particular situation (The Justice System). In this paper, I will analyze the prevalence and exercise of discretionary judgment in the criminal justice system by focusing on a variety of different actors in the system and how much discretion each holds; additionally, I will introduce some of the problems that occur with each actors level of discretion, discussing the Sandra Bland issue relative to police discretion and whether her arrest was legal. I will conclude my paper by identifying the positive aspects of discretion and comparing them to its drawbacks in order to show that discretion is an essential component to an efficient justice system.
Police officers have a large amount of discretion in their job. There are four important aspects of police discretion. The first is that they have the freedom to decide whether or not to stop a suspect (Newhouse and Fahey). This is a huge amount of discretion because they are essentially deciding whether or not a person may be guilty of a crime. The second aspect is twofold; the police must decide whether or not to use force in effecting a stop as well as what level of force should be used. The third aspect is the decision of whether or not to arrest the subject in the field (Newhouse and Fahey). The fourth aspect, and the one with greatest level of discretion, in my opinion, is whether to begin the criminal process or let the criminal go with a warning (Newhouse and Fahey). This decision can change the outcome of a criminals life and it is completely left up to police discretion; it may be something as small as having to pay a speeding ticket, or something as large as having to go to jail or end up dead like in the case of Sandra Bland.
Due to problems with police discretion, the current trend in policing is to radically reduce the amount of discretion a police officer may exercise in the field. One problem with police discretion is transparency (Newhouse and Fahey). Usually no one knows exactly what happened except for the officer(s) and the defendant. Because of this, police are not always subject to review (Newhouse and Fahey). Another problem with so much discretion is that it can lead to police harassment or abuse (Newhouse and Fahey). In the 1991 Rodney King beating, the police abused their discretion in deciding what level of force should be used.
Did officer Encinia abuse his police discretion in arresting Sandra Bland? Were his actions legal? The Bland issue is expansive and there are still a lot of unanswered questions as to what really happened. For that reason, I will be limiting my analysis of police discretion to the initial interaction between Bland and the officer, Encinia, who pulled her over and arrested her. I will be focusing on whether or not the arrest was legal and whether or not Encinia abused his discretion, rather than if there was a racial prejudice involved.
For those of you who don’t know, here is a simplified version of what happened. Encinia pulled Bland over for not signaling when changing lanes. After running her license and plates, he used his discretion and decided to just issue her a warning. Bland was already agitated though because she had just arrived to Texas and did not want to be dealing with this. Before issuing her the warning, Encinia asked Bland to put out her cigarette. That is when things began to escalate. Annoyed Bland asked why she had to put out the cigarette if she was in her car, at which point Encinia asked her to step out of the vehicle. Before she even got out of the car, the two were locked in a physical confrontation, which continued outside of the car on the side of the road. Encinia later handcuffs and arrests Bland.
The first issue that comes up is whether or not Encinia had the discretion to tell Bland to put out her cigarette, and if so, did he abuse it. The second issue is whether or not Encinia had the discretion to tell Bland to get out of the car, and if so, did he abuse it. The third and final issue is whether or not Encinia had the discretion to arrest Bland, and if so, did he abuse it.
Through my research, I was unable to find any statute that requires you to put out a cigarette when you are in your own vehicle, assuming that it is a tobacco cigarette. Encinia was allowed to ask Bland to put it out, but Bland was not required to under the law. As far as an officer ordering a person out of a vehicle during a traffic stop, courts have given officers a huge amount of discretion in order to protect themselves. This is where it gets a little tricky. From dash camera video surveillance of the encounter, it seems that Encinia ordered Bland out of the vehicle because she would not put out her cigarette, and not putting out a cigarette does not seem to be a big safety issue. However, it is possible that her refusal came off as hostile, in which case Encinia did not abuse his discretion in asking Bland to exit the vehicle (Phillip). Police officers often fear for their lives in routine traffic stops, because they never know who they are pulling over. According to the FBI Law Enforcement Officers Killed and Assaulted reports, in 2012 alone, 4,450 officers were wounded or assaulted in various manners during traffic stops, some being killed (Rosario). While Encinia’s actions may seem unfair, you must consider the cops perspective.
Once a a person is out of the vehicle, new rules apply. An officer is legally allowed to handcuff the person, again for their own safety. According to Texas law, if the person resists the arrest for any reason, the person can be charged with resisting arrest regardless of whether or not the arrest or search was legal (Phillip). So, again, Encinia was acting within his bounds when arresting Bland. Because she was fighting back, I do not think he abused his discretion by arresting her.
Prosecutorial discretion makes American prosectors some of the most powerful public officials. They decide whether or not to bring criminal charges and what charges to bring. Prosectors choose whether or not they want to use a grand jury. Even in a grand jury hearing they have a great amount of power, as they get to present their case without the defense present. They also have the power to offer plea bargains and have leniency as to what they can offer (Lynch). As former Deputy District Attorney Alan Jackson describes it, “when you become a prosector, you have the power…you have the ability to impact lives and families in ways we don’t talk about everyday.” Their decision of whether or not to charge them and what to charge them with or offer them in a plea bargain will forever change the life of the accused and their loved ones.
With so much power and almost no oversight comes problems of misconduct. Prosecutorial misconduct takes place when a prosecutor breaks a law or the code of professional ethics during the prosecution process. In the 1935 case Berger v. United States, Justice Sutherland described it as, “overstepp[ing] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.” A common example of prosecutorial misconduct is withholding evidence. A prosecutor’s job is to work with the police and all of the evidence gathered in order to build a case against the suspect that will convince a jury that the suspect is guilty. But more importantly, it is their job to present the judge and jury with factual evidence and legal arguments that lead to the conviction of the guilty defendant, not just any suspect. They are required to turn over all exculpatory evidence to the defense, however sometimes they do not want to; sometimes they find evidence that would likely exonerate the person they are trying to convict. Although it is illegal to do so, they sometimes withhold the evidence because they are so convinced that the suspect is guilty. An example of a prosecutor withholding evidence is the Michael Morton case, which led to the incarceration of an innocent man for 25 years. In Texas, in 1987, Morton was convicted of murdering his wife based on circumstantial evidence. There was an interview with Morton’s son in which he told the police, “Daddy wasn’t home when mommy got hurt. A monster with a mustache hurt Mommy,” but the prosecutor did not turn this over to the defense. 25 years later Morton was exonerated when his attorney was finally given access to the police report. At this time DNA testing was also available. The testing of a bloody bandana at the scene confirmed Morton’s innocence. Other examples of prosecutorial misconduct include but are not limited to prosecutors misstating the law when arguing to the jury [Caldwell v. Mississippi, 472 U.S. 320 (1985)], prosecutors knowingly using perjured testimony [Mooney v. Holohan, 294 U.S. 103 (1935)], prosecutors ignoring their obligation to disclose to the defense special treatment or promises of immunity they had given to a government witness in exchange for testimony against the defendant [United States v. Schlel, 122 F.3d 944 (11th Cir. 1997)], and prosecutors making inflammatory, racially based remarks to the jury about the accused [United States v. Alzate, 47 F.3d 1103 (11th Cir. 1995)] (Joy).
A grand jury does have some discretion, but it is reliant on the prosecution. Grand juries work closely with the prosecutor and are not formed until the prosecution has requested one. They have the ability to ask to hear from particular witnesses and can question the charges, however they often agree with the opinion of the prosecutor. Where they have their largest amount of discretion is in their ability to decide whether or not to indict. This is also where grand juries are most controversial; Grand juries have the power to decline to indict, despite probable cause that the criminal act has occurred. They may do this if they disagree with a criminal law or how it is being applied to the accused. They may also do this to send a message of disapproval of what they believe to be are unwise prosecutorial decisions or allocations of law enforcement funds. This discretionary ability is sometimes referred to as “grand jury nullification” (Fairfax 703). Because the basis for a grand juries decision is kept secret, some people fear that a nullification may be used for the wrong reason.
Unlike a grand jury, which helps the prosecution formulate accusations, the petit or trial jury tests how accurate the accusations are with standards of proof. Although a petit jury does has a significant amount of discretion, it is often believed that they have more than they actually do. A petit jury does not deal with questions of law, that is left up to the trial judge. Their job is to look at the factual evidence and decide whether or not it is compelling. The jury does get to decide the verdict, however if the judge feels that the jury has ignored the weight of the evidence, they can overrule their verdict (Petit Jury). Essentially, a judge can overturn a jury’s guilty verdict and request a new trial or deem the defendant not guilty, however they cannot overturn a not guilty ruling by the jury. There is one exception to my previous statement that the petit jury does not deal with questions of law-jury nullification. Like the grand jury, a petit jury has the ability to nullify if they do not agree with the law or how it is being applied and their basis for the decision is also kept secret. In summary, a petit jury’s discretion holds a lot more power in a not guilty verdict or nullification than it does in a guilty verdict.
Defense lawyers and defendants have very little discretion compared to other actors in the criminal justice system. At trial, defense lawyers have some discretion when it comes to what evidence to present and what witnesses to use as well as how to present their evidence and conduct their cross-examinations. Defendants have more discretion than their lawyers because they decide whether or not to plead guilty and whether or not to take the stand.
A criminal judge is tasked with balancing the needs of the community and the rights of the defendant; they are given a large amount of discretion in order to do so. Judges have the ability to let charges stand or dismiss charges. The 8th amendment gives them the ability to set bail and decide how much to set it for. Judges have discretion when it comes to what evidence can come into the court and which witnesses can testify, essentially directing what a jury can hear. Although there are sentencing guidelines, judges often have the ability to choose the degree of punishment on a sliding scale. As I previously mentioned, judges also have the ability to overturn guilty verdicts.
One of the biggest concerns with judicial discretion is inconsistency. Different judges will exercise their discretion differently because of their own beliefs and understanding of the issue. Judges have been accused of abusing their power when it comes to sentencing. Authors such as Jon Roland believe that judges will impose lenient sentences in order to avoid prison overcrowding and the early release of violent offenders.
Discretion is an essential component to an efficient justice system. There are concerns about discretion, but they are outweighed by the positive aspects. For example, while police discretion is transparent, it is outweighed by public safety. If police officers were unable to arrest suspects on scene before attaining a warrant, a suspect may flea and commit a potentially life-threatening crime. As far as the Bland issue goes, like I previously stated, we do not know all of the facts of the traffic stop and following arrest. I think that it is necessary for officers to have discretion for safety reasons, and if we are worried about them abusing it, we need to have stricter guidelines for becoming a cop. The discretion is essential, but it must be put in the right hands. Prosecutors have been accused of brining cases to court without enough evidence, but it is better that they have the discretion to choose whether or not to bring each case. Alternatively, if they did not have this discretion, and were required to present every case that was brought to them, they would constantly be wasting the courts time and taxpayer’s money. Grand juries and petit juries are accused of having too much power when it comes to deciding not to indict, returning a not guilty verdict, or nullifying, however they are necessary because they are the cross-section between the common citizens and the governmental judicial actors. They bring the views of the community to help ensure not only a fair decision, but one that encompasses democracy. Discretion is essential to defendants and their attorneys so that they are given a chance to tell their side of the story. The biggest drawback of judicial discretion is inconsistency, however this drawback can also be looked at as a positive aspect. Inconsistency also means flexibility, which is a good thing because not every crime is exactly the same, therefor it should not be treated exactly the same. Judges must look at the broad scope, the entire story, when making a decision. This specifically applies to sentencing guidelines. Judges are usually given a choice between a low, medium and high sentence. The judge will look at the circumstances of the crime, whether or not the defendant is a repeat offender, what their ties are to the community, etc. when deciding where on this scale they should go. Someone who is charged with robbery for stealing food for their baby because they are poor should not get the same sentence as someone charged with robbery for the fourth time who was trying to steal alcohol.
Our criminal justice system needs discretion in order to ensure that each case is not only treated lawfully, but that it is carefully thought out. Without discretion, majority of the criminal justice system could be run by computers. We need people and their decision making ability in order to understand and evaluate the human aspect of each situation.
Fairfax Jr., Roger A. “Grand Jury Discretion and Constitutional Design.” 93 Cornell L. Rev. 703 (2008). <http://scholarship.law.cornell.edu/clr/vol93/iss4/7>
Joy, Peter A. “Prosecutorial Misconduct.” California Innocence Project. California Innocence Project, 2014. Web. 11 Oct. 2015. <http://californiainnocenceproject.org/issues-we-face/prosecutorial-misconduct/>.
Lynch, Gerard E. “Prosecution: Prosecutorial Discretion – Varieties Of Discretion, Subjects Of Prosecutorial Discretion, Standards Of Prosecutorial Judgment, Controlling Prosecutorial Discretion.” Law Library-American Law and Legal Information. Jrank, n.d. Web. 3 Oct. 2015. <http://law.jrank.org/pages/1870/Prosecution-Prosecutorial-Discretion.html>.
Newhouse, George B., Jr., and William F. Fahey. “Police, Police Misconduct & Rule of Law.” Lecture 4. USC, Los Angeles. 3 Feb. 2015. Lecture.
“Petit Jury.” Encyclopædia Britannica. 2015. http://www.britannica.com/. Web. 5 Oct. 2015.
Phillip, Abby. “A Trooper Arrested Sandra Bland after She Refused to Put out a Cigarette. Was It Legal?” Washington Post. The Washington Post, 22 July 2015. Web. 16 Oct. 2015.
Roland, Jon. “Abuse of Judicial Discretion.” Constitution.org. Constitution Society, 2015. Web. 10 Oct. 2015.
Rosario, Rubén. “No Such Thing As A Routine Traffic Stop.” Nosuchthing. Force Science Newsletter, n.d. Web. 16 Oct. 2015.
“The Justice System.” Bureau of Justice Statistics. Office of Justice Descriptions. Web. 12 Oct. 2015.