Toward a Marxist Analysis of Discretion and Institutional Discrimination in the Legal System

This article provides a dialectical materialist examination of the production and use of the concepts of discretion and institutional discrimination within the criminal courts. It is argued that existing Marxist accounts of discretion and discrimination, and the recommendations stemming from these, rely upon theoretical orientations that are insufficiently materialistic and processual in orientation. The U.S. Supreme Court case of McCleskey v. Georgia is presented here to illustrate the contradictions that spawned, and are spawned by, the production and use of these concepts. Contradictions related to the construction of the subject are identified as essential to the understanding of these dynamics. The essay concludes by offering a materialist recommendation that judicial discretion should be supported and institutional discrimination should be rejected.