Judicial discretion

Judicial discretionis the power of thejudiciaryto make some legal decisions according to theirdiscretion.Under the doctrine of theseparation of powers,the ability ofjudgesto exercise discretion is an aspect ofjudicial independence.Where appropriate, judicial discretion allows a judge to decide a legal case or matter within a range of possible decisions.

However, where the exercise of discretion goes beyond constraints set down bylegislation,bybinding precedent,or by aconstitution,the court may be abusing its discretion and undermining therule of law.In that case, the decision of the court may beultra vires,and may sometimes be characterized asjudicial activism.

In 1824, US Chief JusticeJohn Marshallwrote the following on this subject:

Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.^[1]

Concerns with regard torecidivismand otherlaw and orderissues have led to the introduction ofmandatory sentencing.E.g.three-strikes lawsand mostsex offender registry laws in USare examples of laws carrying severe consequences, and which does not leave room for sentencing judges to consider the actual gravity of the offense, thus significantly limiting judicial discretion insentencing.Introduction of mandatory minimum in criminal sentencing is often viewed as a shift of judicial power from judges toprosecutors,who are capable of affecting the length of potential sentence through theircharging decision,e.g. filingchargesonlesser included offenseand dropping the charges carrying mandatory minimum sentences.^[2]Mandatory sentencing laws have been particularly popular among legislators in the United States. This has provoked formation of non-profit organizations such asFamilies Against Mandatory Minimums,Women Against RegistryandRSOLto lobby for reinstatement of judicial discretion in criminal sentencing.

References

^Osborn V. Bank of the United States,22 U. S. 738 (1824).
^"Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures".Department of Justice Canada. 11 January 2002.

Judicial discretion

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