Essay on Discretion and Ethics in the Justice and Judicial Systems

Published: 2021/12/01
Number of words: 2517


Discretion may only be applied to judgments made with legal authority, not those taken for unlawful purposes. Moreover, individuals inside an institution must have the legal power to make choices and work within the limits that others within the company or profession accept. This concept is helpful because it permits discretion to be addressed in a legal context rather than when diverse actors, such as police officers, operate unlawfully and decide to perform forbidden activities, which is not considered legitimate discretion. When judgments made by officials do not produce the expected beneficial effects but are taken in good faith, they nevertheless remain under the purview of discretion (Parent, 2015). Decisions taken by officials in bad faith are not considered discretionary. This paper seeks to examine how discretion and ethics within the judicial and justice systems are exercised at different levels in the system.

  • Legislators

Modern states aim to offer legislators latitude in making decisions and enacting laws to achieve the goals that have been established. The concept that the official must think about its goals within a specified sphere of authority and then decide on policies and tactics for attaining them is central to this sense of discretion (Pranevičienė, 2011). There may be discretion in defining and interpreting purposes; there may also be discretion in the rules, standards, and processes to be followed in attaining these objectives. The inhabitants of a democratic nation entrust legislative authority to Legislature. In extraordinary circumstances, the government retains legislative power (when referendums are carried out regarding issues of utmost importance to the state). In the context of representative democracy, Legislature is the primary legislative topic. Nevertheless, Parliament is not the final instance to which legislative authority is assigned. Following the delegation of legislative power, the Parliament transferred some of its sources to the executive branch (administration).

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The first assumption about the appropriate exercise of discretionary powers is that Legislature must provide discretionary legislative powers to an administrative agency. It is also critical to establish the objective or the reason for giving such discretionary powers (Barnes, 2016). As a result, in such a scenario, the legislation must be evaluated technologically. It is assumed that the Legislator does not intend to empower and legitimate misuse of such powers by incorporating and providing the right of discretion to the administrative institution through legislation. Typically, such capabilities are equipped to carry out highly significant governmental objectives.

All too frequently, however, a few members’ unethical discretion and behavior may throw a shadow over the entire organization, making it appear to be part of the issue rather than part of the solution. While legislative malpractice is more common in transition or developing countries, no government is immune to the problem. An “ethics regime”—a set of norms to regulate member behavior and a method to enforce those standards—must be established to reduce legislative misbehaviour. The issue is not that lawmakers are fundamentally corrupt or will become so in the future (Pranevičienė, 2011). Instead, the nature of their employment forces lawmakers to grapple with severe ethical difficulties regularly. Legislators confront a challenging responsibility in navigating the often dangerous seas of political life, as the media scrutinize them, non-profit groups, and the general public. Legislators would be wise to create a code of conduct and financial disclosure standards that guide tough decisions and safeguard against false allegations.

An ethical code must be created in a way that respects and represents the country’s culture. Gift giving, for instance, has symbolic significance in many civilizations and so should not, and maybe cannot be removed in an attempt to conform to any universal idea of ethical behavior. While cultural differences may cause variations in the construction of ethical regimes, there is little dispute among international political leaders and anti-corruption specialists about what constitutes good public service (Pranevičienė, 2011). Claims that cultural differences hinder the establishment of a comprehensive moral code should be viewed with scepticism. Parliamentary offices of state should make judgments based on the merits of the subject rather than extraneous pressures such as money. Citizens’ confidence and trust in administration are critical in a democracy; thus, ensuring that trust is not exploited is required.

  • Police Officers

Discretion in enforcement agencies, particularly in policing, is vital to the police department’s operation and connection with society. Control is rarely employed at lower ranks of the service; instead, commands are delivered and must be followed irrespective of the subordinate’s sentiments or preferences. Some claim that a trend toward greater discretion will result in more professional police services (Fadillah, 2020). It is also necessary to explain how the concept of professionalism will be applied in law enforcement. The transition to higher professionalism necessitates the need for the administration to aggressively push operational choices in a way that is representative of an organized pattern while still maintaining control over its members. Professionalism suffers when police officers’ discretion is eroded by leadership and accountability.

On the other hand, Sanders and Young (2007) have reservations about police management’s capacity to regulate operational police officers’ discretion (Pranevičienė, 2011). They believe that discretion can lead police to manufacture evidence, search for guilt rather than truth, paraphrase statements with prejudice, mismanage exhibits, and neglect to disclose information. The capacity to supervise and effectively lead officers with greater discretion and autonomy than management has severe consequences for police managers.

Police employment is unsupervised and “unsupervisorable” for a considerable portion of the officer’s day, owing to the latitude granted to officers at the operational level. Even though they work with a great degree of autonomy and are not visible to their superiors, police officers are responsible to their superiors. Efforts have been made to restrict operational decision-making among police officers due to the inevitable discretionary errors that officers make (Azemi, 2019). Domestic assaults have been subjected to a reduction indiscretion, with police personnel pushed to prosecute offenders rather than resolving the matter gently. Police think that if they are compelled to arrest individuals in instances where they would otherwise opt not to prosecute them, their ethical standards would be jeopardized because they believe the charges will be unfair. Other issues linked with the legislation included more significant workload, decreased professionalism, and the possibility of exacerbating a situation due to the arrest.

Without discretion, the officers and the entire criminal justice system would become overburdened, leading to public dissatisfaction. Owing to the inevitability of a shortage of resources and the requirement for quality services, police officers will always be required to exercise discretion. Ethically made choices will enable charges to be confined to only those that matter, making the police force more productive in pursuing only such offenses.

  • Prosecutors

Prosecutors have complete discretion in selecting who to prosecute with a felony, what allegations to bring, whether to drop charges, whether to plea bargain and how to deploy prosecutorial resources. In places where the death penalty is used, the prosecutor determines who lives and who dies through the charging decision. Prosecutors have the most discretion in three areas of decision-making: filing allegations, dismissing charges, and plea negotiating. After an arrest, a prosecutor reviews the case to assess if it should be prosecuted or dismissed (Choi, 2020). The decision to prosecute is determined by the following factors: the adequacy of the evidence connecting the accused to the allegation, the gravity of the allegation, the magnitude of the court’s caseload, the need to save prosecutorial assets for more severe cases, the availability of substitutes to official prosecution, and the defendant’s complicity (moral blameworthiness).

After bringing a case, the prosecutor may reduce the charge in exchange for a guilty plea or file a nolle prosequi “no. pros.”. A nolle prosequi is a legal statement given by a prosecutor indicating that a lawsuit has been dismissed. Insufficient proof, inadmissible evidence, fraudulent charges, and the small nature of some acts are all reasons for entering a ‘nol. pros’. Prosecutors also have discretion when considering plea bargains with defense counsel (Sandoval, 2020). A plea bargain is an agreement in which the prosecution permits a defendant to plead guilty in exchange for a concession, such as reducing the charges or suggesting a less harsh penalty. Plea bargaining helps both the accused and the state. It offers the accused the chance of a reduced sentence and less expensive legal representation. It reduces the government’s financial prosecution expenditures, enhances court efficiency by having fewer cases go to trial, and allows the prosecution to focus its efforts on the most serious cases.

In their haste to prosecute, many prosecutors fail to recognize their responsibilities and thus become unethical. Some, perhaps a significant number, are so motivated by the desire to punish the alleged perpetrator that they willfully ignore their ethical responsibilities; these persons, unconstrained by regulations or moral compass, conceal exculpatory evidence from defense lawyers, coach their witnesses, pressure defense witnesses into fading away, intimidate defense witnesses with the prosecution, and thus intimidate them into refusing to testify.

Imposing sanctions on prosecutors would be the ideal way to prevent unethical discretions by these prosecutors (Sandoval, 2020). This legislation establishes a new system and method for detecting unethical trial behavior by a prosecutor and imposing appropriate punishments for such conduct.

  • Judges

Judicial discretion is used when a judge is assigned power by legislation or common law that compels the judge to select between multiple alternatives but equally legitimate courses of action (Wilbur, 2021). It is the ability to choose between different paths of action. Judicial discretion is necessary since the law cannot predict every possible outcome or determine which rules apply in a given scenario. There are specific opportunities and problems inherent in the use of judicial discretion.

Judicial misbehavior can take various forms, and ethical norms handle problematic acts, omissions, and connections that undermine public trust. Common accusations of ethical misconduct include inappropriate demeanor, failure to appropriately dismiss when the judge has a conflict of interest, participating in ex parte communication, and failing to promptly carry out their judicial responsibilities. Conduct outside of the courtroom might also be a concern. Judicial conduct monitoring should not seek to control simply individual parts of a judge’s life. On the other hand, a judge might commit misconduct by participating in personal conduct that throws their judicial integrity into doubt. This is true even if the same behavior would be deemed imprudent by the ordinary person. The garment, as the phrase goes, accentuates the behavior (Wilbur, 2021). Violations of criminal law, sexual misbehavior with staff/attorneys/parties, membership in discriminatory groups, and exploiting the judicial position to advance a private interest are prominent examples.

Implementing a natural means of protecting the public from judicial wrongdoing is critical; there must be scrutiny. Furthermore, forces attempting to avoid unpopular but accurate legal decisions must be done with as little risk of illegal involvement as possible. Of course, a suitable mechanism must be in place to preserve judges’ rights to contest ethical allegations. If it is determined that a judge breached judicial ethical rules, the next step is to choose a punishment or remedy (Wilbur, 2021). A well-equipped conduct commission must have accessible suitable treatments. Public discipline serves the twin goal of reforming the offending judge while also teaching others in the system.

  • Prison Officials and Correction officers

Correction officers and prison officials follow an ethical code and professional behavior, a set of moral norms and guidelines for the proper performance of responsibilities. There is no standard wording for the code, with any jurisdiction or institution free to create its own. However, the primary objective is to dispense justice with honesty and within the confines of the law (Tancredi, 2013). The code provides the foundation for policies and directives, rules and regulations, systems and procedures, all of which are followed and implemented in the context of facility operation and management. It embodies essential characteristics such as discipline, prudence, honesty, vigilance, respect for human rights, and a feeling of responsibility.

The majority of unethical decisions in corrections and prisons involve the production of contraband, the use of alcohol or drugs on the job, violations of protection and stability practices, subpar work performance, rule violations, and conduct that is capable of interfering with the facility’s collaborative process or posing a significant potential threat to security. The use of contraband by staff has brought a new twist to existing practices. It’s surprising that some people would endanger their careers to promote a medication that is easily accessible at local convenience stores. Several countries have recently placed a higher focus on positive relationships with prisoners (Atherton, 2014). Professionalism has evolved from an overused, meaningless term to specific training and skill development to assist correctional employees in making better personal and professional choices.

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Offenders must understand that it is not only the supervisor who says no to inappropriate behavior. The restriction must be backed by the principles and dedication of all employees within the business. Most of the time, it takes years and several generations of personnel to do this. The following are some of the strategies that are crucial to that procedure. Require personnel at all levels of the correctional facility to be transformative leaders and officials (Tancredi, 2013). It entails fully engaged leadership performance, which involves assisting personnel in shaping a mission/vision for the future through successful partnerships. This method makes use of resources that are generally inactive. Allow middle management to deal with misconduct by officers on an informal level by offering mentoring and an opportunity to grow as leaders by effectively regulating personnel behavior at their ranks.


Within the limitations, discretion will allow the government to conserve resources while pursuing just the infractions that the public wants to implement. While discretion fosters an effective process, correct operational decisions must be taken at the lowest levels of the hierarchy to enhance the institution by creating competence throughout the Judicial and judicial systems.


Atherton, G. (2014, December 16th). 5 steps to better ethics in corrections. Retrieved from Corrections:

Azemi, F. (2019). “ETHICAL AND SOCIAL JUSTICE ISSUES: THE CASE OF CORRECTIONAL INSTITUTIONS.”. Journal of Legal, Ethical and Regulatory Issues, 1-10.

Barnes, J. (2016). “Duties and discretions: how have’plain english’legislative drafting techniques fared in administrative law?.”. AIAL FORUM.

Choi, J. (2020). “Book Review: Charged: The New Movement to Transform American Prosecution and End Mass Incarceration.” . 631-633.

Fadillah, F. T. (2020). “Police discretion is a judgmental skill.” . Technium Soc. Sci, 14.

Parent, S. M. (2015). Ethics in Law Enforcement. Victoria, B.C.

Pranevičienė, B. (2011). Legislative Discretionary Powers of the Executive Institutions in the Field of Regulation of Higher Education in Lithuania. Retrieved from

Sandoval, J. L. (2020). Ethical Considerations for Prosecutors. St Mary’s Journal of legal Malpractice and ethics, 40-43.

Tancredi, N. (2013). “Ethics in Criminal Justice with an Emphasis in Policing and Corrections.”.

Wilbur, T. (2021, June 25th). How judicial discretion impacts sentencing in criminal cases. Retrieved from Canadian Lawyer:

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