O conceito da discricionariedade, quando aplicado na compreensão do sistema de justiça criminal e das instituições nele inseridas, tem produzido grande quantidade de debates acadêmicos e institucionais. Em geral, tal ideia é reconhecida enquanto um elemento de tensão no âmbito dos processos de aplicação da lei no moderno Estado Democrático de Direito. Ela tem sido usada, mais especificamente, para designar momentos em que há alguma ruptura ou ruído nos procedimentos racionais e formais do sistema de justiça. Apesar desse sentido mais geral do termo, não é possível obter nas literaturas especializadas, em especial das ciências sociais e das ciências jurídicas, definições precisas, muito menos consensuais, para essa ideia. Notavelmente, foi nos países de língua inglesa em que esse debate alcançou maiores nuances. Ali, a discricionariedade ora foi considerada um aspecto inerente da forma de se aplicar a lei, podendo produzir justiça ou injustiça. Ora foi entendida como um resquício de formas pré-modernas de administração da justiça, sendo necessária eliminá-la. Ainda, foi definida como um conceito a ser descartado, seja por não conseguir delimitar precisamente o fenômeno que procura descrever, ou por tentar definir algo que na verdade se encontra em outro nível de análise. Já no Brasil não é possível falar em termos de um debate sobre o conceito da discricionariedade, pois aqui vem se adotando diferentes conceitos para descrever os fenômenos geralmente enquadrados por essa ideia, como arbitrariedade e seletividade. Os objetivos dessa pesquisa, portanto, são realizar uma síntese bibliográfica crítica dos debates nesses dois conjuntos de literatura, subdivididos, por sua vez, de acordo com a matriz disciplinar de cada pesquisa; estabelecer os pontos de contato e de separação entre cada uma delas; e, por fim, indicar os temas que se abrem a partir disso para a melhor compreensão do sistema de justiça criminal brasileiro. Assim, verifica-se, em maior grau, distanciamentos entre os dois grandes grupos de pesquisas em função sobretudo da configuração específica do sistema de justiça brasileiro, baseado na civil law, e de sua doutrina, em comparação com o sistema da common law. Mesmo assim, também se argumenta que a incorporação da gramática da discricionariedade, conforme delineada aqui, pode ser produtiva para o avanço da compreensão do sistema de justiça brasileiro. Por fim, indica-se o Ministério Público enquanto objeto privilegiado para a realização dessa tarefa, pois nessa instituição se expressam mais nitidamente as tensões identificadas em ambas literaturas, tanto na sua constituição organizacional, quanto na sua configuração doutrinária. Além disso, afirma-se também que o Ministério Público tem sido palco de um movimento de aproximação com seu correlato da common law, o que torna ainda mais produtiva a adoção da gramática da discricionariedade para sua análise. / Discretion is a key concept to understand the criminal justice system and its institutions. It is also the focus of a large number of academic and institutional controversies. This phenomenon is generally acknowledged as a source of tension to the processes of law enforcement associated with the democratic state governed by the rule of law. More precisely, discretion has been used to describe defective aspects of justices rational and formal procedures. Despite this general statement, social sciences and law studies are far from asserting an unequivocal definition of discretion. If one looks through researches published in English, he will find numerous differences. Discretion is sometimes described as an intrinsic feature of law enforcement that can equally provide fair or unfair consequences. It is also sometimes described as a residual feature of pre-modern administration of justice that has to be suppressed. Finally, some researches argues that discretion is a concept that must not be used since it cannot precisely describe a single phenomenon. Or because it attempts to describe something that simply do not belong to its level of analysis. Yet, Brazilian researches provide a different scenario. Discretion it is not as often used as in the previous case. The phenomena frequently understood as discretion is more commonly described by concepts such as arbitrariness or selectivity. Henceforth, the objectives of this research are: provide a research synthesis of this controversial field; compare the Brazilian literature to the English literature by means of a critical approach; and, at last, point out the questions arose by such comparison and that can be helpfully used to interrogate Brazilian justice system. Therefore, it will be argued that the different comprehensions found between Brazilian and English studies are due to the specific development and configuration of their justice system, each one being based upon different traditions (common law or civil law). However, it will also be argued that the adoption of the grammar of discretion by Brazilian researchers may result in the advance of the comprehension of its justice system. Finally, it will be pointed out that the Ministério Público (Brazils public prosecutors office) is a key institution at which discretion framework can be usefully applied. Especially because this institution clearly express the controversies and tensions previously identified in its organizational and doctrinaire constitution. Finally, it will be argued that the Ministério Público is also at the center of a movement towards its approximation with the common law prosecutors office.

The determination of how far a firearm was from a victim or target when it was discharged is a frequent request to crime laboratories. This determination requires test firing the firearm at various distances to compare gunshot residue patterns made during the test with patterns on the victim or target. Crime laboratories stipulate that the same firearm and ammunition used in commission of the crime must be used for this testing; however, little empirical evidence exists supporting this requirement. It was the purpose of this study to determine if there were any significant differences using different firearms and different ammunition in distance determination testing. The findings indicated that no significant differences occurred with different firearms but there were significant differences with different brands of ammunition.

Post release follow-up was conducted on a total of 95 Kentucky Correctional Facilities inmates, who had acquired a General Equivalency Certificate in the years 1981-1983. The rate of Recidivism of this group was compared to that of all parolees released during that period. It was found that the parolees in general who were released during that time period returned to the institution at a rate of 36.7 percent, The parolees who had completed the GED Program in the institution prior to release returned at a rate of 35.78 percent. The average length of time spent in society by those who were returned was 14.7 months with the shortest length of time being 5 months and the longest 41 months. The age of the study participants ranged from 20 years to 37 years with the average age being 24.75 years. While the number paroled to urban and rural areas was approximately the same (36 urban, 41 rural), the urban returnees showed a rate of 33.3%; those from rural areas returned at a rate of 29.2% to institutions.

Given the ever-growing body of evidence surrounding implicit bias in and beyond the institution of the law, there is an equally growing need for the law to respond to the accurate science of prejudice in its aspiration to objective practice and just decision-making. Examined herein are the existing legal conceptualizations of implicit bias as utilized in the courtroom; implicit bias as peripheral to law and implicit bias as effectual in law, but not without active resolution. These views and the interventional methods, materials, and procedures they inspire are widely employed to appreciably “un-bias” legal actors and civic participants; however, without an accurate conceptualization of the science of prejudice in law, these interventions are likely doing more harm than good. On the basis that these interventional techniques are unscientific in their methodology, reliant upon a misleading theory of transparency of mind, deny the inherently emotional and biased origin of the court, and are disseminated largely technocratically, they fail to serve their intended purpose. In actuality, they reinforce systemic intergroup biases and are seen to produce a lesser objective justice. This project reiterates, as with so many aspects of justice, that there must be the same care taken in the address of those structural and institutional contributions to implicit bias that the enterprise of law perpetuates in and of itself as have been taken in the address of our individual cognitive predispositions toward discrimination.

This research study explored the policies and procedures that education systems abide by, as well as how these policies are enforced to protect the confidentiality of dependent children’s private information from being exposed in their schools to non-relatives and uninvolved parties to their case. Elementary, middle school, and high school faculty’s perception of confidentiality was explored to identify individual competence when working with social workers during their direct contact visit with dependent children on school premises. Data collection included anonymous online surveys of 30-school faculty of various schools in the Southern California. There were no significant findings to support school faculty’s lack of competence of confidentiality protocol when a Department of Children and Family Service social worker conducts a visit on school premises. Future research should involve a qualitative study of school faculty perceptions to gain more accurate and unbiased information from participants.

The present paper is a descriptive study of sex offender sentencing in three Oregon counties in 1992. It examines the relationship between sentencing practices and indigent offenders. It focuses specifically on the question of offender indigent status and court ordered sex offender treatment. The study also provides information about the number of sex offenders in each of the three counties, how the offenders' sentences were determined by the courts through the use of the sentencing guidelines matrix, what type of plea was used, and what if any influence indigence had in the sentencing outcomes for the felony sex off enders in this study. Viewed from a conflict theoretical perspective, it was expected that indigent sex offenders would experience differential treatment by the courts. Two-tailed chi-square tests were computed to determine if a difference exists between sentences given indigent and non-indigent offenders. The same tests were applied to determine if there exists a difference between indigent and non-indigent in regard to the addressing of treatment in the sentence order. The tests were considered significant at the . 05 level. A significant difference was found between probation sentences and prison sentences for indigent versus non indigent offenders. Frequency scores were examined for this study by the number of indigent sex offenders that were convicted in each sample county for 1992, guilt type, guilt type and sentence, sentencing guidelines matrix score, indigence and race, and treatment by county. There is minimal information on the topic of sex offenders and the possible relationship between indigence, sentence disposition and treatment. The information contained in this study will contribute to the body of knowledge in the area of sex offenders and the results of this study will provide information useful for further research.

Because rejoining the workforce may prevent against ex-offender recidivism, securing gainful employment is one of the best indicators of successful societal reintegration for released prisoners. However, the stigma attached to a criminal history, combined with ex-prisoners’ lack of human capital, may threaten their ability to obtain a job. The present study examines hiring managers’ attitudes towards previously imprisoned offenders applying for positions in their workplace. Using a combination of brief, fictional applicant biographies and surveys, this mixed-groups factorial study explores how hiring managers (N= 28) consider gender, type of offense, and race when an ex-offender is assessed during the application process. Results indicated that, regardless of their offense, gender, and race, ex-prisoners were generally perceived to be less employable and less likely to have work-related characteristics such as honesty and the ability to communicate effectively.

Recent political and legal action has raised awareness about underreporting of sexual assaults on college campuses. The present study sought to identify psychological and institutional barriers to reporting sexual assaults through a series of questionnaires administered to current college students (N= 364). To investigate the relationship between policy variations and students’ likelihood of reporting, a 2 (option to report informally versus only formally) x 2 (student involvement in investigation/judicial board: involved versus uninvolved) x 2 (option to terminate an investigation: entirely in student’s control versus up to discretion of administration) between groups factorial design was used. The findings suggest that respondents’ were significantly more likely to report a sexual assault when given the option to terminate the investigation at anytime, when school size, rape myth acceptance and socio-cultural environment were controlled for in the analysis. These findings suggest that the option for complainants to terminate an investigation, their socio-cultural environment and individual rape myth acceptance are important factors in shaping attitudes towards reporting sexual assaults.

In recent years, there has been a dramatic increase in instances of Republican-dominated state legislatures proposing changes to election law that some see as protecting electoral integrity and others understand as intended to suppress votes of traditionally Democratic constituencies. This thesis is a detailed collection of the rationales used to justify these changes, as examined through a case study of North Carolina’s enactment of the omnibus Voter Information Verification Act of 2013 (VIVA). By also including the arguments proffered during the legislative process by opponents of the law, and after evaluating the merits of the arguments on both sides, I find the rationales used to justify the law’s provisions to be unconvincing and misleading. This study confirms the speculation that new election law restrictions are first and foremost a Republican attempt to gain partisan advantage. Given this conclusion, I offer suggestions as to what factors might eventually shift the current era of election law legislation from one of restrictions, to one focused on creating efficient, accessible, modernized electoral systems that inspire citizen confidence regardless of partisanship.

In the U.S. legal context, psychoanalysis is viewed by most scholars (and most judges) as outdated, even unscientific, and there is little room for psychoanalytic expertise in U.S. courts of law. However, there are some scholars who continue to do theoretical work in the conventional Freudian tradition, as well as numerous critical legal theorists who have appropriated the psychoanalytic conceptions of Jacques Lacan in their critiques of the law. This is a brief survey of how these scholars conceive of the law in psychoanalytic terms. Is it the judge being analyzed? Is it the lawyers, or the law students? Is the law itself viewed as subject with an unconscious and with symptoms? Or is it an analysis of legal texts as having an unconscious dimension that is hidden like an ideology? I identify examples of all four frameworks, and conclude that these scholars, notwithstanding their theoretical orientation, have practical goals for law in mind. / En el contexto jurídico de los Estados Unidos, el psicoanálisis es visto por la mayoría de académicos (y jueces) como anticuado, incluso anticientífico, y hay poca cabida para el conocimiento psicoanalítico en los tribunales de justicia estadounidenses. Sin embargo, hay algunos académicos que continúan realizando labor teórica en la tradición convencional freudiana, así como numerosos teóricos críticos del derecho que han adoptado la visión psicoanalítica de Jacques Lacan en sus críticas al derecho. Este es un breve estudio de cómo dichos académicos conciben el derecho en términos psicoanalíticos. ¿Se está analizando al juez? ¿O se está analizando a los abogados, o a los estudiantes de derecho? ¿Se percibe el derecho en sí como un paciente con subconsciente y con síntomas? ¿O se está analizando los textos jurídicos como textos que poseen una dimensión inconsciente, como una ideología? En este ensayo identifico ejemplos de los cuatro contextos y concluyo que estos académicos, a pesar de su orientación teórica, tienen metas prácticas para el derecho en mente.