Discretion in the selection of crimes. A sociological approach to the determinants of correctionalisation

This article examines the ways in which French magistrates use a process of correctionalisation to transform more serious offences ( “crimes”) into less serious offences ( “délits”) by dismissing the aggravating circumstances that set apart more serious offences in the criminal law. It highlights that legalism as regards the facts of the offence compete with professional standards of good justice, which are concerned with the cost of trials, judicial results and the general efficiency of the penal response, which justify for the judge the process by which the selection of legal offences is articulated using extralegal criteria. Judges assess on a case-by-case basis the “merit” of the material in the criminal case file for an offence to be judged in the criminal court, distinguishing how the procedure varies from that to be used for a misdemeanour through its prestige, its repressive potential and by the sheer burden of the process. The focus turns to professional common sense that emerges from the typical features of disqualified crimes.