Judicial discretion is the power of the

judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...

to make some legal decisions according to their

discretion Discretion has the meaning of acting on one's own authority and judgment. In law, discretion as to legal rulings, such as whether evidence is excluded at a trial, may be exercised by a judge. The ability to make decisions which represent a res ...

. Under the doctrine of the

separation of powers The separation of powers principle functionally differentiates several types of state (polity), state power (usually Legislature#Legislation, law-making, adjudication, and Executive (government)#Function, execution) and requires these operat ...

, the ability of

judge A judge is a person who wiktionary:preside, presides over court proceedings, either alone or as a part of a judicial panel. In an adversarial system, the judge hears all the witnesses and any other Evidence (law), evidence presented by the barris ...

s to exercise discretion is an aspect of

judicial independence Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan inte ...

. 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 Legislation is the process or result of enrolling, enacting, or promulgating laws by a legislature, parliament, or analogous governing body. Before an item of legislation becomes law it may be known as a bill, and may be broadly referred ...

, by

binding precedent Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. Fundamental to common law legal systems, precedent operates under the principle of ''stare decisis'' ("to stand by thin ...

, or by a

constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed. When these pri ...

, the court may be abusing its discretion and undermining the

rule of law The essence of the rule of law is that all people and institutions within a Body politic, political body are subject to the same laws. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". Acco ...

. In that case, the decision of the court may be ''

ultra vires ('beyond the powers') is a Latin phrase used in law to describe an act that requires legal authority but is done without it. Its opposite, an act done under proper authority, is ('within the powers'). Acts that are may equivalently be termed ...

'', and may sometimes be characterized as

judicial activism Judicial activism is a judicial philosophy holding that courts can and should go beyond the applicable law to consider broader societal implications of their decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...

. In 1824, US Chief Justice

John Marshall John Marshall (September 24, 1755July 6, 1835) was an American statesman, jurist, and Founding Fathers of the United States, Founding Father who served as the fourth chief justice of the United States from 1801 until his death in 1835. He remai ...

wrote 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.

Concerns with regard to

recidivism Recidivism (; from 'recurring', derived from 'again' and 'to fall') is the act of a person repeating an undesirable behavior after they have experienced negative consequences of that behavior, or have been trained to Extinction (psycholo ...

and other law and order issues have led to the introduction of

mandatory sentencing Mandatory sentencing requires that people convicted of certain crimes serve a predefined term of imprisonment, removing the discretion of judges to take issues such as extenuating circumstances and a person's likelihood of rehabilitation into co ...

. E.g. three-strikes laws and most 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

sentencing In criminal law, a sentence is the punishment for a crime ordered by a trial court after conviction in a criminal procedure, normally at the conclusion of a trial. A sentence may consist of imprisonment, a fine, or other sanctions. Sentences f ...

. Introduction of mandatory minimum in criminal sentencing is often viewed as a shift of judicial power from judges to

prosecutor A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...

s, who are capable of affecting the length of potential sentence through their charging decision, e.g. filing charges on lesser included offense and dropping the charges carrying mandatory minimum sentences. 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 Families Against Mandatory Minimums (FAMM) is an American nonprofit advocacy organization founded in 1991 to challenge mandatory sentencing laws and advocate for criminal justice reform. FAMM promotes sentencing policies that give judges the di ...

, Women Against Registry and

RSOL The National Association for Rational Sexual Offense Laws (NARSOL) is an organization headquartered in Raleigh, North Carolina with operations based in Albuquerque, New Mexico and with affiliated organizations, advocates, and contacts in the vast ...

to lobby for reinstatement of judicial discretion in criminal sentencing.

See also

References

Further reading