Police discretion paper


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Police discretion paper

  1. 1. Patel 1 Avsar Patel Professor Bocker Police and Society 21 April 2014 Discretion in Policing Today discretion is witnessed everywhere. From what a person wants for lunch to either taking another’s liberty. Discretion is something that is ample in one profession the most, which is no other than our very own “gate keepers” of the criminal justice system known as Police Officers. Police officers have one of the most discretion in enforcing the law and how to carry it out to the public. The general public thinks there is certain way officers have to impeach the law and always have to follow a directional chart for which if this happen you have to arrest them or if that happens you have to detain the person. In reality police officers have to input their own judgment based on all the other surrounding circumstances, the issue they are dealing with rather then only one or two aspects, which is also known as the totality of the circumstance that is taken into factor routinely by officers. For example if a police officer stops a vehicle with a toddler on board and finds out the driver has a uninsured car will he arrest the driver and take custody of the toddler or is he going to just let the driver go home safely with a warning and direct him to renew his insurance which involves his own judgment. But to make it clear discretion does not mean officers can totally depend on their judgment, they still have to follow certain standard operating procedures the department put forth, state laws, court decision and also the culture the department adheres to certain discretions. For example, if an officer is constantly cursing out a victim the officer has to keep in mind that his fellow officers might report him. That being said police discretion has been in effect for a long time but was recently noticed in the
  2. 2. Patel 2 early1950’s during the end of the professional era by the American Bar Foundation that is an organization dedicated to bettering the criminal justice system by doing research’s, investigations, and studies. One important study the foundation conducted in 1956 is on Kansas, Michigan and Wisconsin that showed us how discretion is the “low level decision- making by line personal in light of practical and real life consideration was found to be a significant contributor to the crime control and problem solving capacity of criminal justice agencies” (Kelling 22) which means that discretion in the “lower level” the gatekeepers is a vital part in the proceeding of the criminal case as the police are the first rung of the criminal justice system. All in all, this paper will provide an overview of the amount of discretion police officers have, the advantages and disadvantages to police discretion, the effects of police discretion, and overall benefits of controlling discretion. Police discretion in other words is the choice the officer has on the way he or she enforces the law. There are numerous natures of discretion with some examples including order maintenance, patrolling, administrative and criminal decisions. Order maintenance is a task an officer performs routinely which in majority of police department is printed on the patrol as the core value of the department “serve and protect”. A officer who patrols the streets has the “form of power” (Fletcher 274) or discretion to the level of force he wants to use, type of patrol he wants the perform: selective enforcement or general enforcement and decision to make an arrest or not. (Tieger 717) For example if an officer is driving downtown and he sees a male running away with a bystanders personal items A the officer can call it in to dispatch and provide the description, direction of flight, and continue chasing the victims, B avoid the situation by looking in the opposite direction, or C he can get out of the car talk to the bystander, do a full report while other officers are locating the suspect
  3. 3. Patel 3 nearby. Here we can see the amount of discretion the officer has in only patrolling with the different avenues he can take with just a simple robbery during traffic enforcement. Another important discretion is juvenile court referral where the officer has discretion if he want to trial the case which will have important long-term effects on the child when he become an adult regarding him getting jobs, financial aid or even joining the military that the officer can just do by simply charging the juvenile with a town ordinance (Umbreit & Armour 409). As we go into more complicated type of discretions such as discretion on domestic violence officers are required to act in certain way according to their standard operating procedure or policies set by the department. Where other departments do not have these set policies in such areas that involve immediate actions like domestic violence and is not as popular in Caucasian communities. Here an officer has the fundamental choice of arresting one or both of the victims with signs of battering. Speaking to both parties on the consequences of this matter if this continues can be can solve the issue and will make a comfortable environment for the wife for instance call back next time for such situation. As this discretion can have two types of end result to the action the officer takes. For example if he arrests the husband who has a job and dominantly runs the household the wife will not call for help next time due to the negative effects on her children or even her. On the other hand if the officer does not do anything and simply makes a report he is now putting forth and image “the batterer’s [will believe] in his right to use violence to establish power and control over his partner, as well as his perception that such violence will not be punished.” (Bowles 1) Portraying a neglected response to such problem can raise severe issues with the department by having law suites filled towards them if there was death after the fact the officers went there and
  4. 4. Patel 4 made a report. That being said, if discretion exercised effectively the end results are rewarding. A necessity in policing besides a gun, handcuffs, and a patrol vehicle is the use of discretion. Imagine how a police department would function if every single officer enforced the law in a legalistic approach or did his duties according to the book with no discretion. The results would not be very pleasant a lot of burden would be placed on prosecutors and judges, incarceration rates would be much higher than they are now and there would be angry citizens protesting outside of police departments. Hence, if police judgment practiced correctly will prevent the mentioned conflicts. The advantage to the power of police discretion has numerous benefits; discretion caters to an individual and situation. Some examples include offender variables where gender and age is considered, situational variable that includes seriousness of the offense, and lastly system variables, which considers the officers point of view on the law and community attitude. Firstly the law is not clearly set and does not cater to every situation an officer faces on his tour. For example do you charge a mentally ill man with soliciting outside a storefront or arrest him and get him aide? These are examples of numerous cases in which officers confront such victims and are required to use discretion as needed. (Manning 51). Gender and age is also considered in everyday police work. For instance, if an officer pulls a vehicle over at night and there are three on board with two adults that look like the parents of the young girl in the rear of the vehicle the officer will most likely give a warning from his judgment that this family might be coming from a family event or is a law abiding citizens. But on the other hand if the car had four males that look like they have just came from the local bar and are under the influence the officer will most likely call for back up, going off his experience on the job and will
  5. 5. Patel 5 investigate the vehicles further. Secondly another factor officers take into consideration is the seriousness of the crime, which in certain cases such as rape, assault, and homicides they approach it in a legalistic manner and these situations have no discretion. Another factor that is taken into consideration is community acceptance of these harsh crimes, as this is not accepted in society. Even such cases in prison are taken serious where there are inmates versus inmates fights occurring due to certain crimes (Dumond 408) because of the terrible crime one has committed and also serious cases like this go up to the superior court system officers are more cautious with the end results and do not want to risk their job. Therefore charge the victims with every possible crime that fits the situation appropriately. Lastly, another factor taken into consideration is the officer view on the crime. For example if a officer who has a European background approaches kids drinking alcohol and smoking marijuana at the park, the officer might let the kids who are just drinking leave and arrest only the kids with the marijuana as in Europe the culture defines drinking when you are sixteen to be normal. Along with that, police discretion helps police department fill in scarce resources they might be facing in the current economy with less officer due to budget cuts. Discretion also assists the department in prioritizing certain situations in which one needs more helps than the other crime. Along with that the most practiced task on the force is doing paper work, which is one of the vital fundamentals in policing. So if an officer works on minor a offense and writes citations for all of the offense he will be tied up with writing a report. Now the officer is caught up with unnecessary work in which he can be doing real police work. As there are pros and cons, with the pros being the mentioned benefits there also cons to un familiarized situations a officer faces.
  6. 6. Patel 6 The positive effects of police discretion portrays how scarce resources can be solved if officers are given the proper training that in the end will put less burden on the court systems. Juxtaposing, the negative effects of discretion include some opportunities for corruption, abuse of power, hate crime, and causes selective enforcement. Everyday officers are using their own judgment to fit the offense they confront, but is there a set policy in which the officer can open a manual to see if what choice he made was wise or not? There isn’t and all the officer has to do is rely on his own decisions and cross his fingers that it was an appropriate decisions. In certain situation the police officer has not made the appropriate judgment causing he or she to face a judge in accusation of discrimination and now makes the department liable affecting department money. An important negative effect of discretion has on policing is it cause to under enforcement; that is officers are not told on what they can do each tour and what they can not do so they just use their discretion and suppose it will not cause any issues. Which in the big picture leading to serious consequences, for instance officer who allows bars and nightclubs to be open after hours cause social disorganization, “which in turn, increases crime and delinquency rates” (Sampson 774) . Here we can see officer use of discretion can have negative effect on the citizens as well as effect on the community. Looking at the positive and negative results of discretion now lets look at the leading factors to discretion. The cause of police judgment can be viewed by many leading factors. Regarding the general publics’ expectation, social issues, and the working environment in the department. Studies have shown police discretion is a must and supported by well-respected researchers in the criminal justice field like Kenneth C. Davis and Joseph Goldstein. The most obvious factor is the workload of the courts and the criminal justice system would be backed up if
  7. 7. Patel 7 such decisions have not been made. There would be no vacancy in municipal courts and the county courts would have a lot burden from people appealing cases. The factor that is not too obvious is if you abolish discretion it would be controversial with community policing and the cause of low visibility of sergeants in the work environment. Community policing is practiced in majority of police departments especially in the metropolitan cities that requires a two-way link between the community and the police department. Where if officers are told not to have discretion the community is less likely to have that two-way link and will end community policing. Detectives often look to work with the citizens trying to get the names of suspects they are suspicious with or trying to solve the big drug bust to find a suspect they are searching for. Another cause of discretion is resolving the social issue in communities. An issue in many cities is dealing with chronic alcoholics in which results officers to arresting the victim and releasing them after they are sober. Where in this case the result of discretion is helpful as it was in 1960’s handling alcoholics in St. Louis where the officer can refer them to detox program if they met certain eligibilities including having no criminal charges, no sign of injuries or need of medical treatment and the person was not prosecuted. Having such discretions helps the communities solve problems rather than just having a cycle formed which “drunkenness arrests result in conviction and criminal penalty” (Nimmer 2). In result, this gets the community to communicate with the police effectively as they see issues are being resolved and all that need to be done is control discretion by the supplemental lessons on the use of discretion. Professions such as doctors, lawyers, engineers, etc. all have one thing in common which is they all went to school for several years which is way more than a police officer has and several officers haven’t even obtained higher education than high school and
  8. 8. Patel 8 received the job rite after. As mentioned before discretion has many benefits to the community and the department if controlled. It all starts with the department itself. Orders given by supervisor, polices and the certain laws all keep officers in the right track. One way of controlling discretion is by educating officers which in other professional career the respected professional have done studies, projects and researches number of times compared to a police officer who goes to the police academy for six months gets some in house training that is not enforced properly and is put on the streets to make his own judgment which leads to law suits, improper use of force, and poor career ending decisions. A second method of controlling discretion is obtaining information from the civilian review board, which is like getting feedback from customers in a business. A study by Dr. Samuel Walker shows us positive results of controlled discretion when reviewed by a different person. New York Police Department officers are required to fill out a report every time they pull out their firearm and the reason for their justification. Having to do this routinely each time a officers disarms his weapon in front of the public prevents the department from lawsuits and also reminds individuals to think twice prior to pulling the gun out for unofficial reasons (Walker & Macdonald 481). All in all, officers practice discretion daily, it's a vital source they implement and the results are phenomenal if practiced wisely. It helps the department and the community especially in economic situation like today where majority of police departments face budget cuts. Prohibiting discretion is nearly unimaginable and the results would be unpleasant having community citizens all riled up protesting if such decision was to be ever made. It creates a poor atmosphere in the department (Goldstein 160). Officers will be less
  9. 9. Patel 9 proactive, and tend to do only those tasks the supervisor has told them to causing supervisory burden.
  10. 10. Patel 10 Works Cited Bowles, Jerry. "Judicial Response to Domestic Violence." Stop Violence Against Women. Minnesota Advocates for Human Rights, 1 Sept. 2003. Web. 18 Mar. 2014. <http://www1.umn.edu/humanrts/svaw/domestic/link/judges2.htm>. Dumond, Robert. " Intimate Sexual Assault: The Plague That Persists. “The Prison Journal (2000): 408-409. Print. Fletcher, George. "Some Unwise Reflections About discretion." Law and Contemporary Problems Vol. 47 (1984): 274-276. Print. Goldstein, Herman. "Administrative Problems in Controlling the Exercise of Police Authority." Journal of Criminal Law and Criminology 58 (1967): 60-63. Print. Kelling, George. "Broken Windows and Police Discretion." National Institute of Justice (1999): 22-25. Print. Manning, Peter. "The Work of Egon Bittner." Journal of Psychiatry 20 (2013): 51-56. Print. Nimmer, Raymond. "St. Louis Diagnostic and Detoxification Center: An Experiment in Non- Criminal Processing of Public Intoxicants. “Washington University Law Review 1970 (1970): 2-4. Print. Sampson, Robert, and Byron Groves. "Community Structure and Crime: Testing Social- Disorganization Theory." Chicago Journal 94 (1989): 774-802. Print. Tieger, Joseph. "Police Discretion and Discriminatory Enforcement. “Duke Law Journal 1971 (1971): 717-719. Print. Umbreit, Mark, and Marilyn Armour. "Restorative Justice and Dialogue: Impact, Opportunities, and Challenges in the Global Community. “Journal of Law and Policy [Vol. 36 (): 409-411. Print.
  11. 11. Patel 11 Walker, Samual, and Morgan Macdonald. "An Alternative Remedy For Police Misconduct: A Model State "Pattern or Practice" Statue." Civil Rights Law Journal 19 (1994): 481- 485. Print.