Editing Judicial discretion

{{Globalize|article|2=United States|2name=United States law|discuss=Talk:Judicial discretion#Globalize|date=April 2023}}
{{Judicial interpretation}}
'''Judicial discretion''' is the power of the [[judiciary]] to make some legal decisions according to their [[discretion]]. Under the doctrine of the [[separation of powers]], the ability of [[judge]]s to exercise discretion is an aspect of [[judicial 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 by [[legislation]], by [[binding precedent]], or by a [[constitution]], the court may be abusing its discretion and undermining the [[rule of law]].  In that case, the decision of the court may be ''[[ultra vires]]'', and may sometimes be characterized as [[judicial activism]].

In 1824, US Chief Justice [[John Marshall]] wrote the following on this subject:

<blockquote>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.<ref>''[http://supreme.justia.com/us/22/738/case.html Osborn V. Bank of the United States]'', 22 U. S. 738 (1824).</ref></blockquote>

Concerns with regard to [[recidivism]] and other [[law and order (politics)|law and order]] issues have led to the introduction of [[mandatory sentencing]]. E.g. [[three strikes law|three-strikes laws]] and most [[Sex offender registries in the United States|sex offender registry laws in US]] are 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 in [[Sentence (law)|sentencing]]. Introduction of mandatory minimum in criminal sentencing is often viewed as a shift of judicial power from judges to [[prosecutor]]s, who are capable of affecting the length of potential sentence through their [[Prosecutorial discretion|charging decision]], e.g. filing [[Indictment|charges]] on [[lesser included offense]] and dropping the charges carrying mandatory minimum sentences.<ref>{{cite web|title=Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures|date=11 January 2002 |url=http://www.justice.gc.ca/eng/rp-pr/csj-sjc/ccs-ajc/rr02_1/p6.html|publisher=Department of Justice Canada}}</ref> Mandatory sentencing laws have been particularly popular among legislators in the United States. This has provoked formation of non-profit organizations such as [[Families Against Mandatory Minimums]], [[Women Against Registry]] and [[RSOL]] to lobby for reinstatement of judicial discretion in criminal sentencing.

==See also==
*[[Aharon Barak]]
*[[Close case]]
*[[Political bias]]
*[[Sentencing disparity]]

==References==
{{Reflist}}

==Further reading==
*Gelsthorpe, Loraine and Padfield, Nicola. ''[https://books.google.com/books?id=8ZUKws9uEVUC&pg=PP1&dq=%22Exercising+Discretion:+Decision-making+in+the+criminal+justice+system+and+beyond+%22&ei=Q90dSsHFOqqMygSC9uiPCg Exercising Discretion: Decision-making in the criminal justice system and beyond]'' (Willan Publishing 2003).

{{Authority control}}

[[Category:Criminal law]]
[[Category:Judiciaries]]
[[Category:Legal doctrines and principles]]