Discretion and Criminal Law: The Good, the Bad, and the Mundane

Most academic papers condemn discretion in the enforcement and prosecution of crime. This essay argues that discretion should be understood to come in three varieties: good discretion, which is beneficial; bad discretion, which is typified by acts motivated by race, sex, or class considerations; and mundane discretion, which is value-neutral. The decision to pursue a drunken driver rather than a speeder, for example, is a good use of discretion while the decision to pursue one speeder rather than another based on race is bad discretion. Most motives that prompt acts of discretion, however, are value-neutral or what I call “mundane” in the essay. I defend the proposition that mundane acts of discretion should not be condemned because they are simply the residue of what it means to be human. Even the decision of a police officer not to arrest a speeder because the officer is too lazy or too near the end of her shift is, I argue, value neutral because it is not based on any characteristic of the suspect. Once we realize that most types of discretion are either good or mundane, it is easier to think about the problem of remedy for bad types of discretion. On that score, the essay is not optimistic that effective remedies can be designed to counter discretion based on race, sex, or class but some remedies are considered