Judicial Intervention in Correctional Decisions: Threat and Response

Abstract

Courts are giving increasing consideration to probationers', inmates', and parolees' challenges of various discretionary deci sions by correctional authorities. In general, this intervention is perceived by correctional personnel as undesirable and threaten ing to agency and professional autonomy. However, in proper perspective, judicial review of correctional decisions poses no substantial threat since courts generally ask only whether correc tion has acted in a reasonable way. Courts do not try to substitute their evaluation of the wisdom of decisions for the judgments of professional correctional personnel. Correction has usually re sponded to the threat of intervention by adopting a defensive position, claiming, under the guise of the right-privilege doc trine, that courts have no right to review agency decisions. This is self-defeating; in our society, courts have the last word in all situations where liberty is involved. A wiser strategy is for correction to make changes in certain practices and procedures to persuade courts of the competency and fairness of correctional discretion. The result will be judicial satisfaction with correc tional expertise and, at the same time, improvement in the ability of correction to articulate its policies and achieve its objectives.