Vol. 14 No. 2 (February 2004)
EXERCISING DISCRETION: DECISION-MAKING IN THE CRIMINAL JUSTICE SYSTEM AND BEYOND, by Loraine Gelsthorpe and Nicola Padfield (Eds.). Portland: Willan Publishing, 2003. 228 pp. Cloth $55.00. ISBN: 1-903240-99-9.
Reviewed by Thom Brooks, Department of Philosophy, The University of Sheffield Email: firstname.lastname@example.org .
EXERCISING DISCRETION takes a fascinating look at any number of areas of legal discretion-for example, youth justice, sentencing, parole, and asylum, amongst others-in an attempt to understand constraints on its use and areas where it may be regulated better. In addition to introduction by the editors, the collection contains eight chapters by Loraine Gelsthorpe, Adrian Grounds, Keith Hawkins, Katy Holloway, Marie Howes, Vicky Kemp, Alison Liebling, and Nicola Padfield. In each chapter, the authors break new ground in our understanding of discretion and its role in nearly every facet of criminal law. In my view, EXERCISING DISCRETION is the best edited collection in this area since Keith Hawkins's 1992 landmark THE USES OF DISCRETION. (And his essay-the final chapter-is one of the highlights of the current collection.)
It begins with a quite helpful introduction by the editors looking into how discretion is conceived. Often the public is cynical about the existence of discretion in criminal law, too frequently viewing "discretion" in negative terms, such as departing from legal rules illegitimately. Yet, no matter their complexity, our legal rules rarely entail that one and only one decision is merited in a given case. Instead, some degree of ambiguity exists as to what should be done, and discretion acts within this space. Of course, individuals may elect to use discretion in various ways and like cases may be treated dissimilarly, posing a major problem for civil libertarians (see p.4).
The essays in this collection self-consciously follow "in the socio-legal tradition of Keith Hawkins: that is, on the decision-making process itself" (p.15). While the editors readily admit that "[t]his is not to say that the work of legal theorists is ignored" (p.15), one does get the feeling that these largely empirically-based works have much to offer theorists-not least of which involves how justice might be achieved through certain (perhaps unavoidable) institutional constraints. I shall briefly describe the main contents of the next eight chapters.
After the introduction, chapter two follows with the theme "Youth Justice: in pre-court decision-making" by Vicky Kemp and Loraine Gelsthorpe. This study examines the use of police cautioning practice when dealing with young offenders. Kemp and Gelsthorpe offer a clear and concise history of cautioning practices in England and Wales before looking specifically at the experience in Northhamptonshire. This area was chosen because their police force holds the highest cautioning rate (84%) in England and Wales for youths aged between ten and seventeen for indictable offences (p.33). New procedures were implemented out of fear that police were inadequately dealing with repeat offenders. These changes led an Audit Commission to refer to Northamptonshire's new procedures as a model of good practice in 1996 (p.33). Kemp and Gelsthorpe considered cases from January 1999 until April 2000. They found a number of inconsistencies in police responses. Their greatest worries were that youth offenders had not always admitted guilt in contradistinction to police records and, in addition, they feared "[t]here is a danger that the final warning scheme could encourage a routinised approach to decision-making, concentrating on the NUMBER of previous offences and types of disposals, rather than undertaking a thorough review of the evidence" (p.44). Indeed, police did not always follow proper legal conduct in reviewing cases, because they considered these warnings to be a "let off."
In Chapter Three, David Thomas investigates "Judicial Discretion in Sentencing" and opens with an historical look at its origins. It is easy to forget that sentencing discretion for felonies is a relatively new phenomenon; felonies had mandated capital punishment in common law's early years (p.50). Thomas describes in detail how the reforms of 1820-1861 (relating to the curbing of capital offences) led to innovations, such as probation and preventive detention, introducing much greater judicial discretion in sentencing. He then comments on a number of changes implemented in the modern criminal law system, what purposes they were designed for, and how well they functioned.
When it comes to choosing the appropriate punishment for a specific offence, it is far easier to conclude what sentences would be too severe or lenient (see Brooks 2003). A proper punishment usually lies between the two extremes, although it may legitimately take various forms. Thus, the discretion of judges to decide which punishment should be imposed may not itself be particularly problematic. To help ensure greater consistency, the courts have compiled a database of decisions in various cases that judges can consult. Thomas is generally supportive of such moves, but worries that an over reliance on this database could lead to adjudicating similarly for consistency's sake rather than on the particular merits of an individual case, and argues that further work must be done to keep this sort of thing from happening.
Alison Liebling and David Price discuss "Prison Officers and the Use of Discretion" and look into the ways in which staff handle prisoner misbehaviour. Their research is based upon interviews with prison staff and prisoners. They find that when staff enforce prison rules too rigidly, prisoners respond negatively and make their supervision more difficult. Discretionary enforcement of prison rules is more likely to lead to respect amongst prisoners for staff and to improve their relations, making supervision far more effective. Liebling and Price then address particular reasons for discretion and argue that, in a sense, "the job of being a prison officer was compared to the job of being a parent. It was important that staff were in charge of the boundaries, rather than prisoners" (p.85). They conclude that so long as fair principles help guide their discretion in applying rules in individual cases, proper flexibility becomes possible and a healthy prison atmosphere can be maintained (p.94).
In Chapter Five, Nicola Padfied and Alison Liebling (with Helen Arnold) examine "Discretion and the Release of Life Sentence Prisoners," based upon 1999 research on the decisions by Discretionary Life Panels. While some studies make a strong case for the release of a large number of life prisoners, including murderers (see Cullen and Newell 1999), their release is often at great odds with public opinion. Unsurprisingly, decisions in this area tend to be cautious. The authors identify a number of factors involved in the employment of discretion in these decisions, finding that cultural and class differences tended to work against offenders (p.104), but their chance of release improved when they were seen as remorseful and cooperative with staff (p.111). They argue that Discretionary Life Panels should be chaired by a judge (which is often no longer the case) and become more transparent (pp.113, 120). In addition, they are troubled by methods of predicting potential future dangerousness on both prudential and moral grounds (pp.114-20).
Chapters Six and Seven each deal with health services and imprisonment. In the first, "Discretion in Access to Forensic Psychiatric Units," Adrian Grounds, Marie Howes, and Loraine Gelsthorpe look at secure psychiatric hospital facilities. Hospital staff recognize mistakes over time; indeed, "[m]ore than three-quarters of interviewees admitted to decisions that in retrospect they wished had been made differently" (p.129). While admission patterns reflect generally "highly discretionary" decision-making (p.138), Grounds, et al., find that clinicians "tended to prioritise the care of the mentally ill and the pursuit of therapeutic benefit for patients, and they saw their contribution to risk management as mainly limited to risk arising from potentially treatable mental disorder" (p.137). Thus, persons admitted to psychiatric units after committing an offence were not treated like "prisoners," as it were, but common patients.
In "Discretion and the Release of Mentally Disordered Offenders," Katy Holloway and Adrian Grounds explore discretion in decisions to release offenders and find that only a very small number, in fact, are released at all (p.140). They attribute this to the grave "responsibility of discharging a patient who has been detained on account of potential to inflict serious harm" (p.140). The most important factor in decisions to release offenders is the person's responsible medical officer-a mere four percent were discharged against this officer's advice (p.145). Another factor influencing decision-making was the security designation of the hospital facility, with those in secure hospitals having the slightest chance of discharge. The seriousness of the offender's crime played the biggest role in decisions, although women and offenders who were married (particularly those with children) were treated more leniently (pp.152-53). Of particular concern was the fact that certain judges seemed predisposed to one decision or another prior to hearings and that the input of lay members was often ignored. Holloway and Grounds argue that the Mental Health Review Tribunal fails to protect patients in its care from unjustified detention, and a new Tribunal system should be instituted (pp.158-59).
My two favourite chapters are the final ones. Leanne Weber looks into "Decisions to Detain Asylum Seekers" and finds great differences in the uses of discretion in decisions regarding asylum seekers to the United Kingdom. She employs Kelman's and Hamilton's three types of "'socio-political orientations' towards authority"-"rule-orientation" (persons who obeyed rules in order to avoid trouble, often disengaged); "role-orientation" (persons who strongly identify with the norms of their organisation or society obeying rules out of allegiance and personal attachment); and "value-orientation" (persons who are more critical of authority and concerned with consequences of decisions) (pp.170-71; Kelman and Hamilton 1989). Weber identifies these orientations based upon extensive interviews presented as case studies of immigration officers. It is striking how well the officers fit into these very different orientations and, thus, how differently each employs discretion, some perceiving it as "part of the job," others as "doing what is best for the country," and still others try to do what is in the best interest of the claimants. Weber's conclusion is simple: "the individual characteristics of decision-makers are likely to have a significant impact on detention practices" (p.181). She argues that more empirical research is necessary into these uses of discretion, with an eye towards some system of just management.
The collection ends with a piece by Keith Hawkins, "Order, Rationality and Silence: Some Reflections on Criminal Justice Decision-Making." Hawkins largely summarises the previous chapters with insightful comments, including various calls for additional research. Indeed, what is particularly noticeable about the studies included in this collection is the complex story they tell of discretionary decision-making processes ranging across various actors in criminal justice. I found each extremely helpful in assessing where discretion exists, why it should exist, and potential difficulties beyond lack of consistency that arise with its use-indeed, the study of discretion is far more interesting than this. Yet, it was also troubling that no single model emerges as THE WAY discretion works generally. I thus concur with the editors that much more work remains to be done.
If there IS any potential drawback, it is that the volume looks almost exclusively at the use of discretion within the criminal law of England and Wales. However, the findings of each chapter are highly suggestive and greater collaboration between researchers in the United Kingdom and elsewhere would be quite useful.
I have no doubt this volume will be welcomed by all working in criminal justice, both practitioners and academics, providing a major achievement in furthering our knowledge of discretion.
Brooks, Thom. 2003. "Choosing Correct Punishments." 47 ARCHIVES DE PHILOSOPHIE DU DROIT 365-69.
Cullen, Eric and Tim Newell. 1999. MURDERERS AND LIFE IMPRISONMENT: CONTAINMENT, TREATMENT, SAFETY AND RISK. Winchester, Waterside Press.
Hawkin, Keith (ed.). 1992. THE USES OF DISCRETION. Oxford: Clarendon Press.
Kelman, Herbert C., and V. Lee Hamilton. 1989. CRIMES OF OBEDIENCE: TOWARD A SOCIAL PSYCHOLOGY OF AUTHORITY AND OBEDIENCE. London: Yale University Press.
Copyright 2004 by the author, Thom Brooks.
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