By: Brittney Bond
Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock
The judicial branch is one of three equally important branches in government alongside the legislative and executive branch. It is important for the balance of powers to remain so that each branch is equally as important as the other. The balance of power within the judicial branch is expressed via judicial discretion. A Court has discretion in how it conducts business such as: starting on time, order in which it calls cases, sentencing so long as it complies with sentencing guidelines, and the courtroom actors that are present. Judicial discretion is vital, but at what point is it harmful?
The inverse of discretion is strict governance, explicit limitations, and direct orders from the legislature regarding conducting business, stricter sentencing guides, and who can and cannot be present in the courtroom.
The idea of judges with procedural issues having such discretion is worrisome to me. When I think of progressive, empathetic, and merciful judges not having discretion, I become equally concerned. So, I am finding it difficult to decide where I stand. Even from my perspective as a second-year law student with limited exposure to the criminal justice system or government operations I know this is an extremely complex issue.
When determining where I stand on an issue, I think it is important to look at all sides of the issue, especially the implications of each side.
The benefit of judicial discretion is that it allows judges to offer leniency when they have the option to be harsh. Discretion ensures the judicial system is an equally weighted branch of the government instead of being forced to take explicit directions from the legislative branch on all facets of the courtroom procedures. Another benefit of judicial discretion is in counties where judges are elected, the citizens can decide who they want to be on the bench in their county.
The harsh reality of discretion is in fact discretion. When discretion is involved, there is the potential for good, leniency and second chances, but there is also a chance for rigid, harsh, unwavering decisions where leniency is deserved. Discretion means that the state has such a large variance in court procedures and sentencing across one state, even across one county. For some, it seems wholly unfair that they could be sentenced to incarceration in one county where if they committed the same exact crime in another county they would receive a fine. For that person, discretion did a massive disservice. When there is discretion and humans at the giving and receiving end of this discretion it can lead to the absence of procedural fairness in the judicial system.
Judicial discretion is something that has been widely studied across the country. The United States Sentencing Commission has done extensive research on this topic. “The Commission measured differences between average guideline minimums and average sentences imposed over the three time periods.” The study revealed that a case outcome strongly depends on which judge
in a particular county takes up the case and that determines the degree of sentencing. The data shows that judicial discretion can create a difference in sentencing for the exact same charges. This particular set of data does not necessarily show that the discrepancy has a harsher sentencing outcome but again, the risk of judicial discretion is the lack of consistency – for better
or for worse.
I am still unsure where I stand. What I do know is that the sliding scale of discretion or lack thereof is a real fear. For that reason, deciding where you stand should not be considered lightly. In fact, it is important that all sides are understood, implications of each are weighed and the long-lasting impact on Arkansans is at the forefront of your thought processes. Because at the end of all this, that is precisely who is impacted, Arkansans.
Fixing complex problems can be messy but these problems need to be addressed, critiqued, worked, reworked, and worked again until a solution that works is found. Too many Arkansans are impacted by the criminal justice system to just turn a blind eye to the system’s problems. We need to be people who are willing to get their hands dirty for the sake of justice and equality.