Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice

Abstract

Police decisions not to invoke the criminal process largely determine the outer limits of law enforcement. By such decisions, the police define the ambit of discretion throughout the process of other decisionmakers—prosecutor, grand and petit jury, judge, probation officer, correction authority, and parole and pardon boards. These police decisions, unlike their decisions to invoke the law, are generally of extremely low visibility and consequently are seldom the subject of review. Yet an opportunity for review and appraisal of non-enforcement decisions is essential to the functioning of the rule of law in our system of criminal justice. This Article will therefore be an attempt to determine how the visibility of such police decisions may be increased and what procedures should be established to evaluate them on a continuing basis, in the light of the complex of objectives of the criminal law and of the paradoxes toward which the administration of criminal justice inclines.