Discretionary Justice Research Articles

Principles for a More Democratic Competition Policy: Thoughts on Discretionary Justice in Antitrust

Principles for a More Democratic Competition Policy: Thoughts on Discretionary Justice in Antitrust

Sentencing Policy, Social Values and Discretionary Justice.

Despite the recent consolidation of sentencing law and procedure, the fundamental values which underpin the policy and practice of sentencing in England and Wales have remained largely unchanged since the deserts-based model introduced by the Criminal Justice Act of 1991. It is argued that this paradigm is no longer appropriate and presents a significant impediment to reducing imprisonment and mainstreaming restorative forms of intervention within the criminal process. An alternative value-based approach is proposed to counter this trend, one that provides greater structural flexibility and empowers sentencers to engage more effectively with the social impact of penal intervention.

Carolyn Strange, Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression

At least since Caesare Beccaria’s time, critics have attacked the power of a sovereign or head of state to pardon or reduce the punishment of people convicted of crimes. They charge that clemency diminishes the certainty of punishment and places the ruler outside of the rule of law. Carolyn Strange’s general theme is this quest for certainty in criminal justice and retention of discretionary punishment. Certainty of punishment within the rule of law was a major principle of Enlightenment thou...

“With all My worldly possessions I thee wed”: Nigerian courts and the exercise of discretionary justice in property ownership disputes in marriage and divorce

The question of title to property between married couples remains intractable in Nigeria’s social context. Ownership is addressed by Nigerian courts in a discretionary framework devoid of a cohesive conceptualization. By reviewing cases in Nigeria and England the paper finds that the exercise of discretionary justice is a ‘cold legal question’ and defective in granting a realistic outcome. A different approach is germane to achieve justice in family law. It concludes that the extant judicial approach is at variance with the marital vow ‘with all my worldly possessions I thee wed’ which imports unity of assets in the social psyche of parties.

Book Review: Discretionary justice: Pardon and parole in New York from the revolution to the depression

Book Review: Discretionary justice: Pardon and parole in New York from the revolution to the depression

Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression

Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression

Locked Down

Locked Down Pippa Holloway (bio) Carolyn Strange. Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression. New York: New York University Press, 2016. x + 323 pp. Halftones, notes, selected bibliography, index. $55.00. Kelly Lytle Hernández. City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771–1965. Chapel Hill: University of North Carolina Press, 2017. 301 pp. Illustrations, maps, tables, notes, bibliography, index. $28.00. At first glance, Discretionary Justice and City of Inmates appear to take similar approaches and might, considered together, suggest a framework for understanding the long history of incarceration in America. Both are local studies that cover the eighteenth through twentieth centuries. Both make arguments about the long legacies of old practices. With the former set in New York state and the latter in Los Angeles, California, they could offer fruitful contrasts between the east and west coasts and highlight histories of locations that still today are critical points on the carceral landscape. Upon closer inspection, though, the two books could not be more different. Discretionary Justice looks at incarceration from the perspective of who gets released and why. Tracing the history of pardons and parole, two paths by which criminal punishment might be modified or rescinded, this is a detailed and impressive examination the gubernatorial policies, criminal justice procedure, and legislative actions of the administrative state. In contrast, City of Inmates foregrounds ideas about incarceration more than the management of public policy. To understand how and why Los Angeles built a massive system of incarceration, Hernández turns to the framework of settler colonialism, finding the origins of mass incarceration in the earliest attempts to eradicate native sovereignty. Discretionary Justice looks at the politics and policy behind clemency in New York, identifying changes but also locating common threads between the Revolutionary era and the 1930s. Pardons find their origins in an ancient practice, the ability of a sovereign to grant mercy to any subject. Despite their undemocratic origins, pardons were enshrined in the first state constitutions, [End Page 413] such as the one in New York, which gave the governor the power to grant mercy in order to curtail criminal punishment. The odd persistence of this "ancient prerogative power of kings" in the new American model of republican government was observed by many, including Alexis de Tocqueville on the occasion of his 1831 visit to the United States (p. 210). Strange notes that pardons faced opposition on several fronts in New York. Two constitutional conventions, in 1821 and 1846, debated the executive pardon but failed to limit it, also rejecting efforts to assign the power to pardon to the legislature rather than the executive. Later in the century, social scientists and modern reformers also challenged the pardon power, saying that this old, irrational form of mercy contradicted both democracy and modern understandings of justice. Critiquing pardons as anti-modern and irrational should have found broad support in New York. Policymakers there were heralded as leaders in prison reform, dating back to the establishment of Auburn State Prison in 1819, a model institution that was imitated across the world. New York also pioneered indeterminate sentencing and promoted the idea of punishment as a means to reform. New York was also among the first states to embrace a new form of discretionary justice and establish a system of parole. Whereas pardons simply terminate punishment, parole is a contingent termination, usually resulting from good behavior. The idea was simple. Good behavior in prison was indicative of a reformed character and would lead to early release. Further proof of reform would come if the individual continued to avoid criminal behavior. Re-offending demonstrated that the reform had failed and would result in re-incarceration. New York established a parole board, made up of experts who would interview applicants and consider evidence from prison officials in determining whether to grant parole. Strange points out what might appear to many as a paradox. As New York established some of the most innovative prison policies in the nation, including parole, it kept the old tradition of pardons. From the perspective of those who sought to bring scientific processes to prisons, whereby...

'Other Spaces' for the Dangerous Dead of Provincial England, c.1752-1832.

The Murder Act (1752) decreed that homicide perpetrators should be hanged and sent for post‐execution punishment. This article explores the event management of criminal dissections by penal surgeons in situ. It reveals that the punishment parade of the condemned did not stop at the scaffold, contrary to the impression in many standard historical accounts. Instead, ordinary people accompanied criminal corpses to many different types of dissection venues. Penal surgeons hand‐picked these performance spaces that were socially produced for legal and practical reasons. They had to be able to process large numbers of people who wanted to be part of the consumption of post‐mortem ‘harm’ in English communities. Event management on location had to have emotional and visual appeal, moral coherence, be timed appropriately, and, if successful, would enhance the deterrence value of the capital code. Yet, managing the ‘dangerous dead’ involved a great deal of discretionary justice with unpredictable outcomes. It often happened in ‘counter‐sites’ of punishment in the community and involved a great deal of immersive theatre. Some events worked well, others threatened the social order. In ‘Other Spaces’ the ‘Dangerous Dead’ was hence a fascinating feature of the Murder Act outside the Metropolis from 1752 to 1832.

Pardon and Parole in Prohibition-Era New York: Discretionary Justice in the Administrative State

Pardon and Parole in Prohibition-Era New York: Discretionary Justice in the Administrative State

Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression. By Carolyn Strange

Discretionary Justice: Pardon and Parole in New York from the Revolution to the Depression. By Carolyn Strange

Victoria’s banning notice provisions: parliamentary, procedural and individual vulnerabilities

Purpose Alcohol-related disorder in Australia’s night-time economy has precipitated an expanding regulatory and legislative framework. A key feature is the growth of police-imposed discretionary justice, one example of which are Victoria’s banning provisions. Banning notices are imposed on-the-spot, may be issued pre-emptively, but permit no right of independent appeal. However, there has been little analysis of the enactment, implementation or use of police-imposed banning provisions. The paper aims to discuss these issues. Design/methodology/approach This paper draws upon a detailed examination of the record of parliamentary debate of the banning notice legislation to document how the provisions, and their embedded procedural vulnerabilities, were legitimised. In addition, an analysis of Victoria Police data informs consideration of the ongoing scrutiny of the police power to ban. Findings The absolute discretion afforded to police officers, and a lack of effective oversight, has created the potential for the disproportionate and discriminatory implementation of Victoria’s banning notice powers. The findings highlight procedural vulnerabilities within the provisions, and concern regarding the particular risk of banning notices for vulnerable recipients. Research limitations/implications The nature of Victoria’s banning provisions created the circumstances for their inequitable imposition, but public scrutiny of their use and effect is limited. Omissions and deficiencies in the published data restricts meaningful analysis of how banning works in practice. Originality/value The research underpinning this paper was the first detailed examination of the implementation and ongoing scrutiny of Victoria’s banning notice provisions. The findings presented in this paper highlight key procedural vulnerabilities resulting from the passage of the legislation and the absence of effective oversight.

Courting Kids: Inside an Experimental Youth Court. By Carla Barret (New York University Press, 2013, 220pp. £16.99)Discretionary Justice: Looking Inside a Juvenile Drug Court. By Leslie Paik (Rutgers University Press, 2011, 272pp. £21.50)

Courting Kids: Inside an Experimental Youth Court. By Carla Barret (New York University Press, 2013, 220pp. £16.99)Discretionary Justice: Looking Inside a Juvenile Drug Court. By Leslie Paik (Rutgers University Press, 2011, 272pp. £21.50)

Discretionary justice

Purpose – The purpose of this paper is to understand the reasons why some financial crises do not result in extensive criminal prosecutions. Design/methodology/approach – The authors examine three major events: the crash of 1929 leading to the Great Depression, the collapse of the US Savings and Loan industry circa 1990 and the sub-prime mortgage meltdown. The authors explain how circumstances surrounding these financial collapses led to stark differences in criminal prosecutions. Findings – This review of prosecutions during three financial crises underscores the contingent nature of seeking criminal penalties for financial wrongdoing. The decision is influenced by a number of factors, including a prosecutor’s level of risk tolerance (probable win test); the potential economic impact of a successful conviction; the number of laws and regulations available in the prosecutorial tool kit; and the desired outcome which can range from new regulatory structures, to prosecutions that fix blame and satisfy the desire for scapegoats, to seeking financial penalties that shore up the government’s bottom line. Research limitations/implications – This study covers three crises and focuses on the US responses. A broader study could look across countries. Practical implications – Regulators and lawmakers are interested in avoiding future crises. Because crises are not anticipated, responses are determined by conditions of the moment. A frequent result is that laws and regulations are not in place. Decisions about likely preferred responses would allow anticipatory legislation and regulations. Social implications – Financial crises obviously have major implications for ordinary citizens far removed from the centers of finance. Improved responses to mitigate or avoid disasters would have profound impacts on people’s quality of life. Originality/value – The three crises have been studied individually. This work is different in that it examines the impact of a common set of factors over three crises covering a span of 80 years.

Reason, Conscience and Equity: Bishops as the King's Judges in Later Medieval England

AbstractIt has long been recognized that many late medieval bishops were heavily involved in secular government. Scholars have tended to characterize these activities in fairly general terms, labelling those who chose to serve the crown as ‘administrators’, ‘bureaucrats’ or ‘civil servants’. In fact, they are better described as king's judges, for a large part of what bishops did in government was dispensing justice in the king's name. The first part of this article explores the contexts of this judicial activity, showing that bishops were especially active in institutions such as parliament, chancery and the council which offered justice to the king's subjects on a discretionary basis. Discretionary justice was closely informed by the precepts of natural law, which in turn derived authority from the abstract notion of the divine will. The second half of the article suggests that the strong theological underpinning of discretionary justice meant that bishops' involvement in secular government did not stand in opposition to their spiritual vocation or their role as leaders of the church. I argue that the sweeping and rather disparaging contemporary and modern characterizations of ‘civil‐servant’ bishops as self‐serving careerists ought to be replaced by a more nuanced understanding of the rationale and motivation of those senior clergymen who involved themselves in secular governance.

Organizational Justice as Mediator of the Discretionary Human Resource Practice-Organizational Citizenship Behavior Relationship: Evidence from Enterprises in China

Organizational citizenship behavior (OCB) is one kind of extra-role behavior beyond formal role descriptions which can be conducted to enforce company’s competency to copy with external competitive pressures as well as internal flat organizational hierarchies. This research builds a mediating model to examine the mediating effects of organizational justice between discretionary human resource practice (HRP) and organizational citizenship behavior based on the social exchange theory and the organizational justice theory. The research illustrates how the different dimensions of discretionary HRP affects employee’s OCB through organizational justice. It statistically tests the data form 227 employees in 10 enterprises with correlation analysis, structural equation modeling and other statistical methods. The results show that all the selective staffing, promotional opportunities, performance management and participate decision making in the discretionary HRP have positive impacts on the OCB. Besides, it indicates that organizational justice mediates the relationship between discretionary HRP and OCB. Thus, organization can promote employee’s OCB through enforcing its discretionary HRP as well as enhancing perceived organizational justice. The exposure of the relationships between discretionary HRM practice, organizational justice and OCB is beneficial to build sustainable HRM system and help enterprises to establish sustainable competitive competence.

Leslie Paik, Discretionary Justice: Looking Inside a Juvenile Drug Court

Leslie Paik, <i>Discretionary Justice: Looking Inside a Juvenile Drug Court</i>

Discretionary Justice: The Right to Petition and the Making of Federal Private Legislation

Over the course of the late eighteenth, nineteenth, and early twentieth centuries, Congress received tens of thousands of petitions seeking payment of private claims against the government and its officers. In response, legislators enacted thousands of private laws for the benefit of individual citizens and corporations. In some congresses, private laws accounted for more than eighty percent of all laws enacted. My Article offers the first comprehensive analysis of this important, but largely forgotten, practice. Through this historical framework, the Article addresses a set of interrelated concerns familiar to all liberal governments: to what degree should statutory law permit the exercise of discretion and, to the extent that such discretion exists, to whom shall the authority for exercising it be entrusted? On the one hand, discretion is inimical to the rule of law because it threatens to subordinate the law’s commands to the venal whims of officeholders. On the other hand, discretion is an indispensable tool for rounding out the law’s hard edges to ensure just outcomes in individual cases. While this tension is familiar, the mechanism that early federal legislators adopted to deal with it is not. For much of our national history, federal private legislation — that is, congressional enactments for the benefit of private individuals — operated as the primary mechanism for dispensing discretionary justice. Our contemporary understanding of statutory lawmaking, by contrast, envisions a process fundamentally concerned with the promulgation of general rules reflecting public norms. As I aim to show here, this understanding does not capture some inherent aspect of legislation, but rather is the product of a historical process that began with a far different conception of the purpose of legislative bodies. Indeed, for much of the eighteenth and nineteenth centuries, local and national legislatures devoted a significant amount (if not most) of their time to functions that appear to modern eyes as judicial in nature: granting pensions, resolving boundary disputes, and settling tort and contract claims against the government. This Article engages in a review of that process through a qualitative analysis of the many thousands of petitions submitted to Congress during its early history. The goal is to better understand the gradual evolution of our modern conception of legislation while also engaging with the process of private lawmaking on its own terms.

Discretionary (In)Justice: The Exercise of Discretion in Claims for Asylum

Section 208(a) of the Immigration and Nationality Act provides that asylum may be granted to an applicant who meets the definition of a refugee-that is, someone who has been persecuted or has a well-founded fear of future persecution in her own country on account of race, religion, nationality, political opinion, or membership in a particular social group. Asylum is a discretionary form of relief which means that the United States government is not required to grant asylum to every refugee within the United States but instead may decide whether or not to do so. This Article sets out in Part I the history and current application of discretion as an element of asylum adjudications, including several case studies to illustrate when and how adjudicators deny asylum in an exercise of discretion and the serious impact of those decisions. Part II then argues that the fact that asylum is discretionary is highly problematic. First, discretion is unnecessary to achieve the purported goals of such a policy, namely, screening individuals for their suitability to become permanent members of the United States community. Second, the fact that asylum is discretionary results in inadequate protection for those fleeing persecution. Finally, the meaning of the term "discretion" is so inherently vague and confused as to make its use inappropriate, at least in the asylum context. This Article concludes that asylum should be a mandatory, not a discretionary, form of immigration relief. An adjudicator's exercise of discretion in asylum claims should be eliminated, or at least substantially limited with an eye towards the problems discussed herein.

Native American Identity and the Limits of Cultural Defence

This article concerns itself with the phenomenon of the cultural defence as it exhibits itself in the US juridical context. Recent socio-legal discussions about this phenomenon reveal three prevalent positions: the illegality of cultural defence on constitutional grounds, the necessity of cultural defence as a matter of discretionary justice, and the intermediary position of working cultural defence into a legal doctrine. By problematizing the operative concept of culture, the author suggests that the idea of cultural defence should be understood in terms of foreignness. This suggestion is supported on the basis of the phenomenological theory of the alien (xenology). In order to illustrate the juridical limits of the cultural defence I examine the history of constructing the Native American as a cultural legal subject. Hence the question that primes this examination: is there a possibility of the traditional cultural defence for the American Indians? After a provisional answer that there is no such possibility, I conclude with the discussion of hospitality as a way to an ethically necessary and legally acceptable idea of culture.

Eroding the Myth of Discretionary Justice in Family Law: The Child Support Experiment

Reliance on judicial discretion to resolve disputes is one of the most fundamental characteristics of the American legal system. Nowhere have judges exercised more unfettered discretion than in family law. Judicial discretion in this area, however, is not without its critics. In this Article Professor Jane Murphy recommends limiting the use of judicial discretion in family law matters. Professor Murphy argues that the lack of predictability which flows from discretionary decisions undermines our confidence in the equity of decisions and encourages protracted litigation.Professor Murphy reviews the developing consensus that fixed rules are necessary to guide judges' discretion in divorce dispute resolution. Examining the application of fixed rules to one particular area of family law-child support obligations-Professor Murphy demonstrates that the use of fixed rules has successfully provided judges and parties with a means of developing more equitable, predictable child support decisions. Professor Murphy concludes that fixed rules similarly will prove useful in other areas of family law that presently are governed by judicial discretion.