Weekly Topic 9/11/09

Judicial discretion is widely disputed among the schools of thought. Under the doctrine of the separation of powers, the ability of judges to exercise discretion is an aspect of judicial independence. However, when the exercise of discretion goes beyond constraints set by legislation, binding precedent, or constitution, the court may be abusing discretion in undermining the law. While certain schools frown upon judicial discretion, legal and critical legal realists see discretion as the norm. I agree with the realists. I believe that judicial discretion is a necessary component of the legal system. No case is identical to another; thus the outcome of every case that is tried should not be pre-determined in its entirety with regard to precedent. I feel that because the legal system does continually and effectively remove inefficient, insignificant, or outdated legislation that judicial discretion is required to offset the imbalance. Judicial discretion is important because the law does not account for every variable or externality that surrounds a case. Thus, judicial discretion's role is to account for the specifics of each case. Judges are popularly elected for their qualifications, thus I feel that judges are permitted to exercise their discretion. Discretion can positively affect the outcomes of cases, saving citizens from unnecessary and excessive sanctions. There are many situations that require judicial discretion in order to prevent substantial harm to an individual/individuals. For example, perhaps a repeat offender is brought in front of a judge for stealing food for his family. While the criminal record of the individual as well as the act committed may elicit imprisonment, imprisoning the individual may result in the loss of a source of food income for the family. Because judicial decisions affect not only the individual involved but also third parties, judicial discretion is necessary to correct the disparity between sanction and appropriate punishment. Some sanctions required by law may be excessive, thus judicial discretion can act as a vessel by which a compromise is made. There are factors that should elicit judicial discretion, such as social background, age, number of dependents, underlying motivations, and even context in which crime is committed.