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In listening to discussions about discretion in the criminal process, one has the sense of sharply cut distinctions slipping toward a black hole in our language. All decisions by police, prosecutors, judges and jury are routinely called discretionary. This usage pervades respectable, basically sound papers. In a recent article in the Yale Law Journal, Goldstein and Marcus seek to demonstrate that discretion pervades the decisions of French, German and Italian prosecutors. They write: "Claims that prosecutorial discretion has been eliminated, or is supervised closely, are exaggerated. Discretion is exercised in each of the systems [French, German and Italian] for reasons similar to those supporting it in the United States."

In an article appearing in this volume, Richard Uviller relates an interchange with police officers. When the officers were uncertain about believing a complaining witness, Uviller impressed upon them that they had "discretion" whether to credit and rely upon the witness's report. Presumably, the officers would not have used that word to describe their decisional situation.

Goldstein and Marcus tell continental prosecutors that there is a feature of their decisional situation that they are inclined to deny. Uviller tells police officers that there is a feature of their role and function of which they are unaware. What happens, exactly, when we as observers of the criminal process begin to describe a decision as discretionary? Do we say something perceptive and accurate about the state of the world? Or is it simply that we impose upon the world a mode of description that we find reassuring? I confess total bewilderment about these issues and therefore I shall offer some admittedly unwise reflections in an effort to find a way out of this confusion.

I suggest that we suspend judgment for a moment about whether the concept of discretion is an appropriate way to capture the reality of decisions made in the processes of arrest, prosecution and trial. Let us go back to the habitat that nourished the concept of discretion and made it right for transplanting into our descriptions of how legal officials behave.


Criminal Law | Criminal Procedure | Law