An Evaluation of the Role of Discretion in Policing

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Policing is not a clear-cut job, and there are many times when the individual discretion of an officer may need to trump the letter of the law. This sample criminology paper explores the level of personal discretion that officers have in enforcing the law.

The role of discretion in policing

As a recent development in criminal justice scholarship, researchers have begun to focus on the level of discretion that police officers have in enforcing the law. While administrators are often bound by bureaucratic regulations, law enforcement professionals at lower levels of the organization possess great leeway in the manner in which they perform their jobs. Because of the power that police have to deprive citizens of their life and liberties, the role of discretion in policing is of great concern to scholars and the public alike.

At worse, too much discretion can allow for abusive behavior, increases in racially motivated shootings, neglecting public safety, and other actions that prevent law enforcement from protecting the public. However, when used appropriately, police discretion can enable police officers to effectively serve the public by enabling officers to make wise use of public resources, protect the public safety, and divert vulnerable populations from the criminal justice system.

Understanding how police officers perform their job

Police discretion is a phenomenon that is integral for understanding how police work is conducted. According to Pond (1999), discretion refers to the selective enforcement of the law by law enforcement officials (p. 94). Even in cases where it is clear that a crime has been committed, police officers often use their discretion in order to determine whether the violation will result in criminal proceedings (1999, p. 94). Through discretion, law enforcement officials utilize their personal judgment in order to assess a situation and determine the manner in which they should proceed (1999, p. 94).

Because law enforcement agencies are often subject to a certain degree of bureaucratization, discretion is likely to be utilized departments that receive less oversight. As Pond notes, discretion increases further down the hierarchy of an organization where officers receive less supervision and where lower visibility enables police to depart from enforcing the law (1999, p. 95). Different departments can still utilize discretion.

Factors in deciding to use force

For example, a detective division can determine how much time is spent investigating a particular case or what resources will be devoted to the investigation. However, because of their relative autonomy, officers on foot or car patrol often exhibit the highest degree of autonomy and enjoy the greatest level of discretion in their daily operations.

Determining if an arrest is appropriate and if force will be necessary

As Walker (1993) notes, there are several decision points that patrol officers encounter where their discretion can greatly impact how the law is applied. The first area where discretion is commonly utilized involves determining whether an arrest will be made (1993, p. 23). In many cases, an officer can decide to give an individual a warning or even overlook a violation if they believe that the infraction committed was insignificant (1993, p. 23).

Type of charges and law enforcement discretion in the use of force

Second, an officer can utilize discretion by determining what charges will be filed against a suspect (1993, p. 23). For example, an officer can change the nature of the charges that a suspect faced by choosing a lesser but related charge for a more serious violation (1993, p. 23). Additionally, police officers can determine how quickly they will arrive at a scene after receiving a dispatch call or what level of force they will use to subdue an uncooperative suspect (1993, p. 23). Each of these choices has a significant impact on the safety of the public and the rights of the individual suspect.

Much attention placed on police's use of force

Because of the potentials for abuse, police discretion has received significant criticism. A Walker highlights, the March 3, 1991, Rodney King beatings that were conducted by Los Angeles police officers highlighted the power that police officers hold to severely violate the rights of suspects when they abuse their discretion (1993, p. 21). Subsequent investigations revealed that excessive force was a rampant problem in the Los Angeles Police Department that was enabled by the lack of departmental oversights and a culture that was permissive to police brutality (1993, p. 21).

Further, Pond asserts members of society disproportionately receive the benefit of the doubt when police exercise their discretion. According to the power model of criminal justice, the use of discretion tends to promote the interests of the advantaged in society (1993, p. 91). The power model is supported by research demonstrating that the majority of individuals who are detained by police officers for crimes are from disadvantaged socioeconomic groups (1993, p. 91). Young unemployed males and blacks are most likely to be incarcerated for their crimes (1993, p. 91). Thus, when police discretion is misused, it can lead to inequities in law enforcement among different socioeconomic groups in society and police conduct that violates the Constitutional rights of citizens.

Yet, despite the drawbacks of police discretion, those who support providing police with leeway argue that it is integral to their jobs.

As Adlam (2003) asserts, “Discretion is the art of suiting action to a particular circumstances. It is the policeman’s daily task” (p. 73).

Further, he asserts that discretion is essentially utilizing “common sense and sound judgment” in order to appropriately respond to policing situations (2003, p. 73).

As Adlam argues, policing is similar to other professions such as ethical decisions in the nursing profession where it is necessary to enable practitioners to utilize their training and expertise to determine how they should perform their work (2003, p. 24). While there should be a balance between holding professionals accountable to the laws supported by the public, the allowance of discretion also acknowledges that police are professionals who can also determine the best manner to preserve the public interest.

Theory of law enforcement versus reality on the streets

There are many cases where the difference between the reality of law enforcement and the actual practice of law enforcement serves the public interest. For example, the utilization of discretion in arrests can prevent the criminal justice system from being overwhelmed by defendants who committed petty offenses (Pond, 1999, p. 94). Also, in cases, such as determining whether to pursue a suspect through a high-speed chase, the use of discretion enables law enforcement officers to also protect the safety of innocent bystanders (Walker, 1993, p. 24).

Further, while improper use of discretion can enable police officers to form biases that disadvantage certain groups of people, proper use of discretion can be utilized to protect vulnerable members of the public and prevent violence against other law enforcement officers. As Smyth (2011) asserts, police often act as “gatekeepers” to the juvenile justice system when they interact with young criminal offenders (p. 153). By utilizing discretionary powers, police officers often have the ability to handle delinquency and other minor offenses in a constructive manner rather than charging the juvenile with a crime (2011, p. 153). Thus, while discretion is considered to be problematic, there are many cases where the ability of the police to use their judgment is necessary to preserve societal interests.

By utilizing discretionary powers, police officers often have the ability to handle delinquency and other minor offenses in a constructive manner rather than charging the juvenile with a crime (2011, p. 153). Thus, while discretion is considered to be problematic, there are many cases where the ability of the police to use their judgment is necessary to preserve societal interests.

Maximizing the benefits of police discretion

In order to maximize the benefits of police discretion while reducing its detriments, regulations should be adopted to prohibit conduct that clearly violates the rights of citizens. As Groenveld (2005) notes, discretion is likely to be exercised in situations where fewer formal rules are established for handling the particular situation (p. 1). Further, administrative rulemaking is the most effective method of restricting discretionary behavior (2005, p. 5). While police should be able to determine the extent to which they arrest and charge suspects of petty crimes, acts such as excessive force should be curtailed through departmental policies.

Though police discretion can be adapted to some degree in each division of a police department, the role of discretion is especially critical to the patrol division. Because patrol officers experience less supervision and higher interaction with the public, the decisions they make have the strongest effect on how the law is enforced in the public sphere. While police discretion has the potential to enable abuses and inequities in law enforcement, this same power can be utilized to preserve the public interest by reducing frivolous charges and constructively engaging vulnerable populations. Thus, reform efforts should maximize beneficial uses of discretion while carefully restricting discretionary measures that might undermine the rights of citizens.

References

Adlam, R. (2003). Police leadership in the 21st century: Philosophy, doctrine and developments. Hook, GBR: Waterside Press.

Groeneveld, R.F. (2005). Arrest discretion of police officers: The impact of varying organizational structures. New York: LFB Scholarly Publishing.

Pond, R. (1999). Introduction to criminology. Winchester: Waterside Press.

Smyth, P. (2011). Diverting young offenders from crime in Ireland: The need for more checks and balances on the exercise of police discretion. Crime, Law and Social Change, 55(2-3), 153-166. doi:http://dx.doi.org/10.1007/s10611-011-9276-7

Walk, S.E. (1993). Taming the system: The control of discretion in criminal justice, 1950-1990. Cary, NC: Oxford University Press.