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: tbrooks@web.de
.
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.
REFERENCES:
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.
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Copyright
2004 by the author, Thom Brooks.