DQ RESPONSE 1
Okay so my understanding in the simplest form of judicial discretion is that it 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 judges to exercise discretion is an aspect of judicial independence. Judical discretion can be exercized 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 the constraints that are set down by legislation, this is done through what is considered to be a binding precedent, but also by the constitution. The idea here is ...view middle of the document...
Judges can also use their discretion to interpret existing laws, as long as their interpretation does not conflict with the plain language of the existing law.
Judicial discretion is limited by the rights of the other branches of the government, and by the doctrine of stare decisis, which means "maintain what has been decided" in the original Latin. This means that a judge does not have the unlimited or all power full right to make or to interpret laws. Outside of these existing rules and regulations, however, judges can, and do, exercise the power of discretion at will.
DQ RESPONSE 4
You know when I start thinking about judicial discretion. I think of a judge sitting there and looking at a defendant and thinking to him or herself, "you know I could send this guy to jail for a year, or I could give him a chance to prove he can behave by putting him on probation instead." But at the same time the judge is most likely looking at the history of this person. Does their history show this person in the past has been accountable for their actions. Have they broken their probation in the past? That kind of thing, that the Judge takes all character information in making a choice around sentencing some one.
That's judicial discretion. It's just using common sense to both enforce the law and treat people with a little flexibility.
DQ RESPONSE 5
So I was researching all this and I thought that I would share a quote on how judicial discretion came to be. “Judicial discretion is identified by two reasons which cause it to exist. First, the trial judge is the only objective person who is on the scene and who is able to see, hear and evaluate the situation from firsthand knowledge. Second, no strict rule can be made applicable for every conceivable situation in the many areas of law. “This statement that was made was by Justice Ben Overton of the Florida Supreme Court, The Meaning of Judicial Discretion, Judicial Discretion, 1991, National Judicial College Publication. I agree with this, it’s kind of like an emergency loop whole for our judges if you really think about. No one in our legal system wants to admit that there’s no law or rule for this. Furthermore the last thing a judge wants to do is be overly aggressive with sentencing if it’s not needed.
Another aspect of all of this is that Americans are highly sensitive to the processes known as procedural fairness. Knowing this...