The gray areas that shape U.S. criminal justice

People with power in the U.S. criminal justice system use their discretion every day to make decisions. They decide who gets a traffic ticket, who gets charged with a crime, what sentence a person should get and more. What do you want to know about how discretion works?

🎥: Ilica Mahajan & Chris Vazquez / The Marshall Project

Transcript:
CHRIS VAZQUEZ: Hey, computational journalist Ilica Mahajan—

ILICA MAHAJAN: Isn’t it weird that the Supreme Court justices can just, like, make a decision about what the law is or isn’t?

CHRIS: Oh, I came in here to get, like, pens?

ILICA: Isn’t it weird that police can decide just, like, when they want to make a traffic stop? Isn’t it weird how, like, judges can just decide who gets a break and who doesn’t get a break or like who has to pay bail and who gets a harsh sentence and stuff like that?! Basically, Chris, come here. There are so many examples of discretion in the criminal justice system.

CHRIS: Discretion?

ILICA: Like, there’s all these rules. But there’s also these people in power. And in the gray area, they can make decisions all on their own. Like when prosecutors can decide whether or not they’re gonna charge someone with a crime, or when some abusive prison guards are disciplined but others aren’t. We want to hear your questions and experiences with discretion and how it works. So comment to let us know what we should be looking into.

CHRIS: You can see them, too?

[Charlie-imiv]

I was offered diversion as a teenager for shoplifting alcohol. My partner's younger brother was charged as an adult for armed robbery with a deadly weapon for pushing a shopping cart at a store employee while shoplifting alcohol 7 years later. Same county, same crime, and we were each 17 when caught. I was given a slap on the wrist and he was given an ankle bracelet.

[batlover]

Thank you for hardcoded captions, I appreciate it so much the accessibility goes a long way.

[turkleton]

Judicial discretion in custody cases would be a great topic. I know it varies by state, but my brother got absolutely destroyed by a judge who never should have been trusted with a library card much less a law degree. Im her decision she made up things that simply weren’t true, blamed my brother for things his ex was on record admitting to, and gave her credit for good things that he did. When he appealed the decision the courts upheld the original decision. They said that factual errors and mistakes weren’t enough cause to overturn judicial discretion in his case.

Why is judicial discretion such a sacred concept that being demonstrably wrong about a decision isn’t enough to change it?

[tinkergnomad]

I went to jail after a guy I was dating put me through a wall, then called the police. I want to know about the women in prison (or otherwise failed by our judicial system) for fighting back against their abusers.

[wvp]

I’ve seen a few of these shorts, this one got my subscription. What a fascinating premise. Can’t wait to see where you take this, ma’am.

[Nopee]

The police came to arrest my uncle for a domestic dispute between him and his girlfriend. My dad went to sit on the couch, and he had a bad back so he accidentally kicked on of the police officer's legs and got arrested for resisting arrest. He was about 61 at the time, he had a metal rod and 3 metal discs in his back. They had him on the ground. Before they took him to the county jail, he had to go to the hospital because he couldnt walk.

My uncle was also arrested, but his charges were lifted when he DID assault the police. My dad took a plea and had a monthly fine for a few years.

[GSBarlev]

Love that "computational journalist" is a career (to clarify: I'm a data scientist, and this comment is 100% sincere)

[kgallchobhair]

That is the most accurate representation of how this all feels, thanks
(Also, the end made me feel like a cryptid, thanks for that too)

[devonlawton]

Immigration is the soul of government official discretion. If they're undertrained or in a bad mood, anything and everything becomes a nit to pick. It's never about the person or the evidence, only the (in)competence and attitude of the immigration officer

[theworkshopwhisperer.]

A system entirely made by one group and entirely controlled by one group... No I couldn't possibly see how anyone could exploit that.

[majdi]

For example, many mask bans allow police to use discretion on whether people are using masks to protect themselves from disease, or if someone is using a mask for "hiding their identity." Please report on mask bans and how relying on discretion is a huge breach of our rights!

[evanbelcher]

Honestly in a perfect world, I'd imagine a system with (much better people exercising) more discretion, not less. I think it would be ultimately more humane if humans could just look at a situation and, with some parameters, decide on a solution that actually helps the people involved and the community. But we're lightyears away from a world where that would be good and not just more abusive.

[calebbrown]

I was held as a slave for four years, and the police "decided" my tracking case wasn't real. spent years trying to get justice, and they just decided not to investigate.

[tomhenderson]

Sorry to be distracted but I wanna know now about computational journalism. I feel like there's a lot of nonsense pulled by the people in power by rules & rulings being too complex for normal people to get their heads around but now we've got vector databases and I want to get 'em.

[TheBookOfPrincessSam]

It woks take an entire conversation to explain it all. But I use to work in law enforcement in middle Georgia - the things I can tell you!

[camerondean]

I feel like discretion is necessary. No amount of words on paper can account for the nearly infinite number of variables in a case that would drastically change the way it is perceived and how it should be handled.

Then the question could be next, is there too much? I’m not sure. Yes examples are given but the existence of outliers where there was too much discretion isn’t an argument for its reduction any more that an outlier example where there is no room for discretion and someone and up with a harsher punishment than necessary would be and argument for it.

Ultimately you’d have to decide how much is too much, how little is too little, and of course factor in human error and decide what margin of error you are comfortable with.

Because there will be error

[parkourninja]

Computational journalism is exactly the billet I wanted to know existed for this. I was an attorney in Tacoma for a (municipal) judge who was notorious for exercising his discretion to (and beyond) the maximum. In my opinion and (biased) observation, I absolutely saw the hammer fall selectively on race and gender lines (woe to the Black man or person with a known drug addiction). I would have given a lot to have access to his court data to evaluate if the truth was as I expected. He was forced into retirement by health and amid accusations of racism and a wonderful judge took his spot. I want open court data to be the standard. These decisions can look arbitrary singly and the aggregate must have a lot to tell us.

[johnrogan]

While on jury duty I was screened for a case that was a theft of less than $100 and I was immediately pissed that they were prosecuting the case. It was a he said she’s said and was a complete waste of jury + judge + prosecutors time but the accused was black so we had to go to trial.

[faedragon]

I have a story I would love to have you look into involving Rockwall County, Tx. This isn't just for clicks.
Where is the best way to reach you?

[ianbelletti]

Discretion has it's good sides and it's bad sides. The good side is that there is enough crime and legal violations that the court and the police do not have enough time and respurces to go after and prosecute everything. That's why they may refuse to prosecute some of the lesser charges, put more focus on hunting down major crimes, or reduce charges on a plea deal to get the conviction without having to waste time with a trial. The bad is where the gray area is abused such as judges making up laws that don't exist (i.e. qualified immunity) or prosecutors refusing to prosecute any small crime (i.e. California not prosecuting shoplifting).