In Defense of Discretion

Opinion Article by Michael J. Zicolello, Esq.

When I was a kid, people in positions of authority had lots of discretion.

It was part and parcel of their job.

Police officers brought kids to their parents for punishment, rather than the precinct for charges.

Teachers confiscated pocket knives and broke up fist fights, with the only punishment being detention or possibly a lecture intended to help teach a life lesson.

Those days are long gone. Now, a mistake, or typical youthful mischief, that I’m sure some you reading this engaged in, will result in a criminal record, rather than detention, extra chores or grounding. I personally have served as the attorney for a kindergarten student at a school board expulsion hearing because the child showed his teacher a rusty butter knife he found on his way to school.

Under the school district’s “mandatory policy” the teacher was required to the report it, the kindergartner was immediately suspended, and a school board expulsion hearing was convened.

You can attach your own words to describe that absurdity of that particular incident. My favored description is not fit for publication.

No one has been immune from our penchant to remove the power to make Discretionary decisions. Back in the day, Judges were as wise as we expect them to be, and were permitted to sentence people for crimes based on their criminal conduct and unique life circumstances.

The judge would consider how best to sufficiently punish the person; while balancing the desire to have them eventually become a productive citizen versus the risk of creating a career criminal.

However, we’ve seen fit to limit our judges’ power to fashion a sentence particular to each criminal defendant by creating mandatory minimum sentences and scoring systems that tell judges what the sentence should be for each defendant.

In case you’ve not noticed yet, there is a real-life war on discretion.

I’m not sure when the war began, but, sadly,

I can not recall any battle where discretion has walked away the victor.

Whenever a decision with a bad result is one with which the majority, or even a loud minority, of us disagrees, rather than simply correcting the decision or removing the person who made the bad decision, we remove the decision itself.

In the honest attempt to fix something that was never really broken, we’ve created an environment where independent decision-making has been crushed under the weight of mandatory rules.

These mandatory rules are put in place largely to address the rare occurrence of the worst scenarios.

So, why in the world would we want them to apply to every situation?

The truth is that any of us can make a very sound and reasoned decision in a given situation and the result can still end up being less than ideal, or even disastrous.

Sometimes the decision-maker may even make a universally recognized horrible decision.

There are just way too many variables associated with the human condition to expect that every discretionary decision will have a good result, or that the decision will be one we all agree with.

Even so, we trust each other to try to do the right thing. At least we use to.

We’ve almost reached the point where we might as well just check our humanity at the door when we arrive at work and plug some information into a computer program whenever a decision must be made. But, it does not have to be this way. There is still hope.

If we are willing to fight for the survival of discretion, and not accept the knee jerk reactions to bad results and poor decisions by removing discretion entirely.

Mistakes are going to be made. Is it really news to any of us, that none of us is perfect? This is precisely the reason why we need to put power back into the hands of the decision maker in matters involving people.

There is no mathematical equation for making the best decision when the object of the decision is a person.

The human condition is complicated.

It is not well-suited for any one-size fits all decision. We need to put trust back into each other that we are all trying to do the right thing, and accept that sometimes things will go sideways.

Perhaps, then we can defeat the next, inevitable assault on discretion.

Zicolello is a local attorney at Schemery Zicolello, PC.

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