The Myth of Discretion

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Abstract
In the traditional view, legal officials who exercise discretion in the performance of their duties act ‘according to the dictates of their own judgment and conscience, uncontrolled by the judgment and conscience of others’ (H. C. Black 1968: 553). As individuals, they consider the unique features of the cases they handle and choose responses that reflect the special circumstances they encounter as well as their distinctive characters and inclinations. The result is a flexible justice in which outcomes are tailored case by case, but also one in which a significant measure of unpredictability prevails. In following their own sense of what is best in each instance, officials often treat technically similar cases in dissimilar ways.

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