September 16, 2025

Grappling with Judicial Discretion in Complex Times

SWSamantha Bent WeberOffice of Tribal Affairs and Strategic Alliances

Key Points

Judicial discretion can both aid and complicate decisions in complex legal situations, particularly during the pandemic.
In cases of compassionate release, district judges relied heavily on discretion due to ambiguous laws, leading to varied outcomes.
Increased transparency about the implications of judicial discretion may help address the ethical challenges faced by judges.
The challenges of relying on discretion in untested legal areas highlight the need for clearer guidelines and support for judges.

Abstract

When areas of the law are ambiguous or untested, such as in the compassionate release cases that proliferated during the height of the COVID-19 pandemic, district judges must rely on their discretion to fill in legal gaps. Discretion can be beneficial, because it means that it allows district judges to consider factors that may lead to potentially harmful outcomes for litigants or their communities. But discretion is imperfect, particularly in the face of ethically or factually complex problems. Perhaps a place to start with addressing this difficulty is greater transparency about the benefits and limitations of discretion.

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