“Facts, Policy, and Discretion”

The title of this post is the title of this new article authored by F. Andrew Hessick and Carissa Byrne Hessick now available via SSRN. Here is its abstract:

Presidents, prosecutors, and judges often announce policies on how they will make discretionary decisions.  These policies have met the criticism that discretion must be the product of an assessment of the particular facts of a case.  Decisionmakers cannot base discretionary decisions on policy considerations, nor can they adopt policies stating how they intend to exercise their discretion.  To do so, the argument goes, does not constitute an exercise of discretion, but rather an abdication of it.

This Article argues that this criticism misunderstands discretion. Discretionary decisions must rest on reasons, and reasons necessarily appeal to principles and policies that are broader than the specific facts of the case.  To require a decisionmaker to consider only facts in exercising discretion is to demand that discretion be exercised arbitrarily.

Using three case studies from the criminal justice context, this Article explains that, far from being prohibited, policy is an integral part of exercising discretion.  Nothing about the nature of discretion prohibits decisionmakers from implementing their policy preferences through self-imposed guidelines or policies dictating how they will exercise discretion. Mischaracterizing these ways of exercising discretion as an abdication has effects on judicial review and misleads the public.