Grappling with Judicial Discretion in Complex Times

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.