Discretion and Domination in Criminal Procedure

Philip Pettit’s conception of freedom as nondomination is modally robust in that it requires not simply reducing the probability of uncontrolled interference by others but entirely eliminating that possibility. In this article, I consider whether freedom as non- domination provides an attractive analysis of official discretion, particularly in the con- text of the criminal law, an area of recurring interest for Pettit. I argue that not only does the modally robust character of freedom as nondomination have some rather unat- tractive implications in the criminal law, but that it sits poorly with Pettit’s more general ambitions to provide a consequentialist framework for the evaluation of social institu- tions. Drawing on recent work by Niko Kolodny, I develop an ‘anti-deference’ inter- pretation of nondomination and contrast it to Pettit’s modally robust conception.