The criminal justice process is not what gets portrayed on television, and most cases do not go to trial or result in a prison sentence. Part of the problem is that our current system is overloaded and ensuring due process and crime control can be more challenging than one thinks. In order to effectively process cases through the criminal justice system, discretion is an important tool for police, prosecutors, judges, and correctional officials. Discretion provides freedom to make decisions, specifically it is the power to make decisions on issues within legal guidelines. Many people see discretion as the most powerful tool of the criminal justice system (Kessler & Piehl, 1998) (Gottfredson, M., & Gottfredson, D., 1988).

1.11.1 Discretion Exercise Box

Police officer discretion refers to the power or authority of a police officer to make decisions regarding the best course of action to take in a given situation. This discretion allows police officers to use their judgment in deciding whether or not to make an arrest, issue a citation, or use force.

For example, as a new Nigerian foreign student in America, I once tried to kill a squirrel in front of my college grounds. The campus police were immediately called by witnesses who became very angry with me. Within a few minutes, the police officer came up and asked why I was chasing the squirrel. I told him that I wanted the squirrel for dinner. After he explained that my behavior was illegal, I apologized and promised to never hunt again without a permit. He gave me a verbal warning and kindly escorted me to class, without issuing a ticket. In this case, the officer used his discretion to determine the appropriate response to the situation based on his assessment of the circumstance. Just like in many professions, the criminal justice employees are given the discretionary authority to make decisions.

Describe a time when you, a close friend, or family member was impacted by a police officer’s use of discretion. How significant was the financial impact of the decision such as detention, arrest, ticketing, citation, or warning?

Ethics refers to the understanding of what constitutes good or bad behavior and helps to guide our actions. Ethics are important in the criminal justice system because people working in the system get authority, power, and discretion by the government (Sellers, 2015).

1.11.2 Funnel Effect (Example)

The “funnel effect” is one way to describe how cases move through the U.S. justice system. The funnel effect in the criminal justice system refers to the process by which the number of cases gradually decreases as they move through the system. This can occur for a variety of reasons, such as police not knowing, plea bargaining, diversion programs, and dismissals. Here is an example to explain the funnel effect in the criminal justice system:

Suppose 20 people commit the crime of selling drugs. Of the 20, ten of the incidents are unknown to police, the other ten a police officer arrests the individuals for delivery of a controlled/illegal substance. All ten of the arrested individuals are charged and brought to court. However, as the cases move through the criminal justice system, the number of cases begins to decrease.

First, the prosecutor may choose to drop charges against one individual because they do not have enough evidence to secure a conviction. This leaves nine cases in the system. Next, the defense attorneys for three individuals may negotiate plea bargains with the prosecutor, agreeing to plead guilty to a lesser offense in exchange for a reduced sentence. This leaves six cases in the system. Then, the judge may refer two individuals to a diversion program, which is an alternative to traditional prosecution that focuses on rehabilitation rather than punishment. This leaves four cases in the system.

Finally, after a trial, one individual is found not guilty, while the other three are convicted and sentenced to prison. This leaves only three cases that resulted in a conviction and sentencing. Thus, the initial 20 criminal actions have been whittled down to only three that resulted in a conviction and sentencing, illustrating the funnel effect Samuel Walker (2006) referred to as the criminal justice system. It is referred to as this because most cases do not go through all steps in the system, some because of discretion, and a large portion because they are unknown to police. The question remains: is the criminal justice system effective at catching, prosecuting, convicting, and punishing offenders? Sometimes it’s important for the system to be able to exercise discretion but too much can also be wrong, finding that balance is very important.

Sometimes a judge may use discretion to release a domestic violence offender to community probation when an officer did not have that discretion at the time of the incident and was required to make the arrest. Some offenders may be at a higher risk of reoffending and thus this is considered when determining next steps. We will discuss this later when talking about using evidence-based practices in the criminal justice system.