Discretion in Decision Making

Judicial discretion is a very broad concept because of the different kinds of decisions made by judges and because of the different limits placed on those decisions. Article III, Section 2, of the U.S. Constitution grants the judiciary broad power, which extends "to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made." Judges' decisions must be made based on the "rule of law," which, in the United States, derives not only from statutes passed by Congress but also from the tenets of the Constitution. In addition, COMMON LAW, or judge-made law, provides limits based on the principle of STARE DECISIS, which holds that a court's decision in a particular case must comport with the RULES OF LAW as they have been determined by that court or by other, higher-level courts, in previous cases. Legal conclusions that do not fit within the prescribed limits of both statutory and common law may be overturned by a reviewing court if that court determines that the conclusions were an abuse of judicial discretion.

At one time, the sentencing of those convicted of crimes was almost entirely within the discretion of judges. Judges could take into account various mitigating factors (circumstances reducing the degree of blame or fault attributed to the offender) and craft a punishment that most appropriately fit the crime. For example, a first-time petty offender convicted of shoplifting might be sentenced to PAROLE and community service.

With the implementation of Federal Sentencing Guidelines and with mandatory minimum sentencing legislation, which passed in both Congress and the states, judges no longer had the broad latitude to make the sentence fit the crime and the defendant. In some states, first-time offenders have been sent to jail for life for the possession of large amounts of controlled substances. Many federal judges must incarcerate parole violators for minor parole violations because the guidelines specifically direct them to and severely limit their sentencing choices. A judge's failure to abide by the sentencing guidelines in issuing a sentence would constitute an abuse of judicial discretion.