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The Practice of Judicial Discretion

The practice of “judicial discretion” has been traditionally the hallmark of Western jurisprudence. The metaphysical premise, out of which this legal practice derives, can be outlined as follows: the legislative acts to which prosecutors refer, while asking judges to provide offenders with an appropriate punishment, do not consider the specific circumstances that motivated such offenders to commit a crime, in a first place – therefore, while proceeding with decision-making, judges should not only be driven by considerations of law, but also by considerations of “common sense” and “legal precedent”.

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For example, if judge believes that an offender, caught committing a petty theft for the first time, truly feels sorry and what he had done and is being absolutely resolved not to steal ever again, he or she might decide in favor of giving this offender a mere moral notation, without sentencing defendant to serve term in jail or even without ordering him to pay a fine.

In its turn, this provides us with the insight on why the practice of judicial discretion has been traditionally associated with particularly juvenile jurisprudence – juvenile offenders are believed to be more likely to choose in favor of becoming productive members of society in the future, if their first crime is being dealt with in rather lenient manner. Nevertheless, in recent years judges seem to be less likely to adopt a lenient attitude towards juvenile offenders, while referring to the principle of judicial discretion as legal basis for such their leniency.

For example, in 1995, Napoleon Beazley (Black) has been sentenced to death by lethal injection, as the result of him being found guilty on the account of manslaughter by the court of law in Texas. At the time Beazley had committed this crime; he was 17 years old and had no previous criminal records. During the course of legal proceedings, Beazley’s lawyer argued that his client’s case should have been dealt with by juvenile court and also that, while deciding upon the punishment, judge should have been driven by considerations of judicial discretion. Yet, this did not help Beazley a whole lot – in 2002, he was put to death.

What causes more and more of today’s judges to choose in favor of providing rather harsh punishments to juvenile offenders, even though these offenders qualify more then anybody else for the principle of judicial discretion being applied to them? The answer to this question is quite obvious – there is plenty of evidence as to the fact that judicial leniency, when applied to juvenile criminals, does not only prompt them to straighten out their ways, but actually endows them with the feeling of legal invincibility, especially when they feel that they can play a racial card, while being tried.

For example, the 2007 movie “Death Sentence” with Kevin Bacon, depicts an absolutely realistic situation – the son of an upstanding citizen Nick Hume (Bacon) is being murdered at the gas station, as the part of “initiation killing” ritual, performed by an under-age member of a ethnic gang (Joe), with Hume being only the witness. In the court of law this juvenile criminal’s case gets to be dismissed on account of: 1) Joe’s lawyer having proved to the judge that his client was “being forced into initiation killing by poverty and racism” 2). Hume refusing to give testimony, as the result of his realization of the fact that, even if he even done it, Joe would end up being sentenced to only 3 years in jail (mockery of justice). It is needless to say, of course, that the fact that Joe got acquitted did not “correct” him but prompted him to consider killing even more “whities”, just for the fun of doing it.

As we have suggested earlier, the principle of judicial discretion derives out of assumption that juvenile offenders’ existential mode primarily correspond to the notion of civility, which is why criminal deeds, on their part, are being often regarded as having accidental nature. However, given the fact that the policy of “multiculturalism” has been given an official status in this country, we now have millions and millions of Americans, whose behavior solely correspond to the principle of tribal solidarity and nothing else. And, within any tribalistic system of existential values, such concepts as civility, respect towards the law, and national loyalty, have no place whatsoever.

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It is important to understand that the legal principle of judicial discretion was originally meant to be applied to juvenile offenders within racially homogeneous society. Moreover, the system of American jurisprudence, as a whole, continues to remain utterly euro-centric, which makes it quite incompatible with the fact that criminal behavior, on the part of many Americans, simply reflects the particularities of their “ethnic uniqueness”.

Vincent Schiraldi’s article “The Juvenile Justice System in Black and White”, reveals the sheer scope of Blacks’ racial overrepresentation among American juvenile offenders: “According to a report released by the Building Blocks for youth Initiative, African American youth are 16% of America’s youth population, 26% of youth arrests, 44% of youth detained after arrest, 46% of youth committed to public facilities, and a whopping 58% of youth admitted to adult prisons in America” (Schiraldi, 2002). The theoretical implication of such statistical data is quite obvious for just about anyone capable of utilizing its sense of logic – apparently, the youngsters that represent racial minorities (in this particular case, African-Americans) are more likely to commit crimes, and less likely to feel sorry for committing such crimes, as compared to Whites.

Another example – it is a well-known fact that the high school drop-out rate among Hispanics accounts for 55%. Also, it is a well-known fact that school dropouts are ten times more likely to commit crime, before they reach maturity, as compared to their counterparts who proceed with studies.

In its turn, this provides us with the insight on why judges would be very unlikely to use judicial discretion, while dealing with Hispanic juvenile offenders who had dropped out of school, before committing a crime – in judge’s eyes, these youngsters’ unwillingness to study (reflected by particularities of their anthropological constitution) serves as the proof to their inborn criminal-mindedness. And, as we are all know, it does not matter how hard criminally-minded people are being educated on inappropriateness of criminal behavior – they will still act in the way their genes have “programmed” them to.

Apparently, despite the fact that the methodology of Positive Criminology has been “discredited” by the hawks of political correctness, judges continue to resort to it, especially while dealing with juvenile criminals – that is, judges are only being lenient to those first-time juvenile offenders who do not bear atavistic features about their appearance.

These features had been defined by Cesare Lombroso in his famous book “Criminal Man”: “Many of the characteristics of primitive man are also commonly found in the born-criminal, including low, sloping foreheads, overdeveloped sinuses, overdevelopment of jaws and cheekbones, prognathism, oblique and large eye sockets, dark skin, thick and curly head hair, large or protuberant ears, long arms” (Lombroso, 1876, p. 222).

The fact that the utilization of judicial discretion in juvenile court has been curtailed in recent years is nothing but judges’ subconscious reaction to the fact that, as time goes by, more and more juvenile offenders appear to be born-criminals, who cannot be “corrected”. Therefore, we cannot refer to this trend and being “positive” or “negative”, just as we cannot refer to one’s unwillingness to swim in the lake filled with crocodiles as the proof of his negative attitude towards crocodiles (“crocodile biasness”) – sober-minded person would never jump into such a lake, because of his self-preservation instinct. In the similar manner, responsible judges can never be lenient towards juvenile offenders, whose appearance radiates viciousness, because judges intuitively feel that these offenders pose a great danger to society’s well-being.

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Lombroso, C. 1876 (2006). Criminal Man. Durham: Duke University Press.

Rimer, S. (2002). In similar cases, one inmate is executed, one wins stay. The New York Times. Web.

Schiraldi,V. (2002). The juvenile justice system in black and white. Building Blocks for Youth. Web.

The Internet Movie Database (2009). Death sentence (2007). Web.

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