Gemma Halliday is a teaching assistant in the School of Law Enforcement and Justice Administration at Western Illinois University, where she has commenced study on a Master of Science in Kinesiology and exercise science. She holds a Bachelor of Social Science (Criminology) from Bond University Australia, where she was awarded undergraduate outstanding academic achievement. She is a recent graduate of Western Illinois University with a Master of Arts in Law Enforcement and Justice Administration, and was made a member of both Phi Kappa Phi and Golden Key International Honor Societies. Ms. Halliday has worked with and studied criminal justice issues in Australia, the United States, and the United Kingdom. Her current research interests include transnational sex and drug trafficking, and police fitness testing and standards.
LEJA 518 - Issues paper: Police discretion.
Gemma L. Halliday
Western Illinois University
“Enforcing the law without fear or favor” (Goldstein, 1963, p. 141).
The very nature of police work is extremely complex in today’s society. Police officers play an important role comprising of many different tasks concerning; actually enforcing the criminal law, performing order maintenance and other miscellaneous services. It is through these duties and services that police are constantly intersecting and interacting with the community on a daily basis. Thus, they hold a very prominent and powerful position in society that requires them to protect these people’s morals, principles and values. And, the way in which police officers go about their duties and enforcing the law should reflect these morals, principles and values in an evolving, dynamic, and complex society (Jones, 2000; Gaines & Kappeler, 2003).
Discretion plays a role in nearly every facet of criminal law. The criminal justice system in the United States permits the use of discretion widely through the police, prosecutors, judges, defense attorneys, correctional officers and parole officers. However, it starts at the very forefront of the criminal justice system with the “gate-keepers.” These gate-keepers are the police and they are the ones who decide whether to take action, where the situation fits in the scheme of law, rules, and which official response is appropriate for them to take (Gaines & Kappeler, 2003; Reid, 2006). Discretion requires making difficult choices subject to scrutiny, while exercising good sound judgment on behalf of that police officer(s).
The purpose of this paper is to examine a controversial topic in criminal justice, such as that of police discretion. The reason for this is that, there are two surrounding arguments that need to be addressed to create a balanced view-point for both sides, which this paper will show. The first is the need for discretion in law enforcement on one side and second, the limitation or abolishment of this practice on the other.
This paper will begin by defining what discretion actually is, and how it fits in within the context of law enforcement. The author will pay attention to the history of discretion, and also to how discretion is used by police officers to cover a wide range of actions, for example; patrol to detective decision making. Furthermore, to the three main factors that can influence discretionary decisions on behalf of law enforcement: situational/offender, organizational and environmental factors. Following on from this, the central premise of this research paper will be explored in-depth concerning; the surrounding arguments in support and in rejection of police discretion. From here, a summary of police discretion concerning policy recommendations will be presented, to show how the use of discretion can be best controlled within law enforcement and criminal justice. The final section of this paper will conclude, with the author’s personal stand and justification for choosing a particular side on this controversial issue of police discretion in criminal justice.
Defining discretion in Law Enforcement
Discretion refers to an official action that is taken by a criminal justice official i.e. police officer, lawyer or judge etc. in which they use their own individual judgment, to decide the best course of action. In theory, the criminal justice official considers the totality of circumstances before determining whether or not legal action should be taken against an individual(s). And, to what kind and degree that action will be taken (Walker & Katz, 2005), for example; issuing a warning, or actually arresting an individual(s) in the case of law enforcement officials. It should also be noted, that discretion is further “a permission, privilege, or prerogative to use judgment about how to make a practical determination. There are embedded constraints” (Kleinig, 1996, p. 3). Thus, criminal justice officials such as the police cannot just go out and freely make choices without consequences. They are bound by laws, rules, norms and guidelines when exercising discretion.
Discretion in law enforcement developed from a basic description to full-blown explanation. Before the 1950’s virtually nothing was known about police discretion. It was assumed that it was nonexistent within the criminal justice field, and those who exercised it certainly did not admit to it. Supposedly,
when police officers observed violations of the law, they wrote a citation or made an arrest. Prosecutors would then prosecute the case to the letter of the law, and judges would hand down inflexible sentences that were the same for every offender regardless of station in life or circumstances (Gaines & Kappeler, 2003, p. 248).
This was largely due to the fact that discretion in policing and furthermore, the criminal justice system was seen as illegal and improper. Police officers were there to work “by the book” so to speak, by enforcing the full letter of the law. With all the corruption going on during this time period in the criminal justice system, recognizing that discretion was evident and played a large and important part in everyday police work was just not acceptable (Sherman, 1984; Kelling & Coles, 1996).
It wasn’t until 1956, when The American Bar Foundation (ABF) conducted a survey discovering that discretion operated at all levels of the criminal justice system, that discretion was “discovered” and really came to light. This survey was carried out in Kansas, Michigan and Wisconsin, relying heavily on low-level decision making by criminal justice officials i.e. police, corrections officers etc. The results on behalf of law enforcement showed that “police work is complex, that police use enormous discretion, that discretion is at the core of police functioning, and that police use criminal law to sort out myriad problems” (Kelling, 1999, p. 6). Furthermore, it was also found that police use a much higher amount of discretion than most other criminal justice officials. This is because as previously stated; the police are the first point of call acting as the gate-keepers of any criminal justice system. Thus, they are among the most important policy makers within society, because they make far more discretionary decisions concerning citizens within the community on a daily basis (Kleinig, 1996; Kelling & Coles, 1996). Dealing with so many different individual cases, it become recognized that law enforcement officers could not always strictly follow all rules and regulations as stipulated by law.
The years following the official discovery of discretion in law enforcement through empirical research, bought about further explanation on the causes of police discretion. Explanations of police officers behavior concerning factors that exerted influence over their decision making, and situations in which discretion was most commonly exercised were examined. In addition, the positive and negative uses of discretion were documented, along with ample evidence to support both opposing arguments. This is where the practice of exercising discretion in law enforcement became controversial, because people did not think that the police could maintain a fair balance between crime control and due process by using discretion (Gaines & Kappler, 2003).
Most citizens assume that police officers exercise discretion only in the case of possible arrest. However, this is simply not the case. Officers from all ranks and specialized units, make discretionary decisions on a whole variety of different actions (Walker & Katz, 2005). From the line-patrol officers who have the most discretion, because they are the primary law enforcers dealing with crime on an everyday basis; to the detective unit; up to the police chief. Every law enforcement official will make discretionary decisions at one time or another, for example; deciding to patrol an area more intensely, or conducting a stakeout to gain more knowledge in an on-going criminal investigation, or even to adopt a more community orientated policing approach. It is these individual discretionary decisions that come about as a direct result of different factors that exert certain influence over a police officers choice, whether to go by the book or use their own judgment. Such possibilities including: situational/offender, organizational and environmental factors; are the three primary factors at the forefront of influencing discretionary decisions on behalf of law enforcement (Gaines & Kappeler, 2003; O’Connor, 2004).
Firstly concerning situational/offender variables, these are the degree of interaction between law enforcement and citizens within the community and offender attributes. Thus, police discretion is influenced by the surrounding circumstances of the situation in which an officer finds himself/herself, and how an offender presents himself to them. Things such as:
all contribute to situational/offender factors that may be present when an officer goes to answer a call out. Hence, officers are in effect taking into account how one or more of these variables relates to the situation in front of them or to them personally, before deciding what course of action to take. However, research has found that the most important single factor concerning situational/offender variables affecting police officer decision making, is the seriousness of the offence. The more serious the crime is then the less likely an officer is to exercise discretion, instead following the “book” and arresting the perpetrator. Furthermore, that police tend to exercise most discretion when dealing with white, middle to upper class, older citizens within the community (O’Connor, 2004).
The second influence, over police discretion is organizational factors. Included within these are: official department policy and informal organization culture. Official police department policies exert quite a powerful influence over police discretion. This is because, they set forth certain written guidelines that stipulate what officers can and cannot do concerning accountability actions among other things. Exercising discretion in the handling of critical incidents for example; high-speed pursuits and use of deadly force, has to be documented and have some form of written policy so that police officers can be held accountable if they are not followed. It is a kind of control over individual officer discretion, so that their judgment is restricted in certain events/circumstances. The informal organization culture, which also comes under organizational factors, refers to the influence that this has over officer discretion. Within a police department, there is this unwritten culture comprised of individual values and traditions that are communicated informally across from officer to officer (Walker & Katz, 2005). Thus, it is this behavior that influences individual officer discretion, because everyone has a different way of doing things and a different style of policing i.e. more legalistic or watchman orientated.
The final factor, influencing police discretion is environmental variables. Basically, local political culture plays a small influence, because all policed communities are different. They may differ in size, demographics etc. thus, policies and police practices will vary. For example; one town may have very aggressive policing on traffic infringements, enforcing the full letter of the law on all traffic violations no matter how minor; while another town lets officers use discretion choosing which traffic infringements warrant ticketing (Walker & Katz, 2005).
Argument for police discretion (Pros)
The use of police discretion in the profession of law enforcement has become regarded as a necessary positive and inevitability. This is because police exercise this practice routinely on a daily basis concerning: stopping, searching, arresting or charging a suspect. Given the ambiguity and out-dated nature of the criminal law, concerning definitions and dealings with situations of conflict and disorder; along with limited and scarce police resources; and variations in the seriousness of individual offending behaviors; police discretion has become a central part for legal order for officers to give effect to the enforcement of law (Rumbaut & Bittner, 1979; Bargen, 2005).
The first argument in support of police discretion involves the criminal law, because the very nature of the criminal law fosters and causes police discretion. By action, the criminal law “has attempted to establish those forms of conduct which its members desire to be declared criminal” (Goldstein, 1963, p. 141). However, these laws are often expressed in such broad terms so that the definitions of crimes are vague, and thus, trying to interpret and enforce this kind of legislation becomes difficult for police officers. The individual officer on the street has to determine whether the incident they are encountering fits into the definition that the law stipulates and to what level. For example; in the case of an assault, does the action constitute simple or aggravated assault? The law defines the crime of assault, but it is up to that individual officer to decide what kind it fits into. The law simply does and cannot cover every possible situation that a police officer could find themselves in, because police encounter a wide range of behaviors and situations that the law has not even thought to consider (Wortley, 2003; O’Connor, 2004; Bargen, 2005). Hence, law-makers cannot anticipate future events and circumstances with which officers will be presented with. Which is why, “no legislature has succeeded in formulating a substantive criminal code which clearly encompasses all conduct intended to be made criminal and which clearly excludes all other conduct” (Walker & Katz, 2005, p. 362). In addition to this, laws become outdated and inappropriate concerning the changes in societal values and community pressures. Therefore, police discretion is needed because it allows for this greater freedom and flexibility of enforcement to deal with a wide-array of social problems not always clearly defined by law.
The second point to note in support of police discretion is that, total enforcement of all laws is basically impossible. Police departments do not have the required manpower or sufficient resources to respond to every call for service. Furthermore, they cannot arrest everyone who has ever committed a crime and get them ready for prosecution. Thus, with these limited and scarce resources along with manpower, police are forced to use discretion by selective enforcement of the criminal law (Goldstein, 1963; Gaines & Kappeler, 2003; Wortley, 2003). Again as previously stated, full enforcement of the criminal law is impossible. Hence, police have to use discretion when making decisions about: enforcing specific laws, allocating their time, investigating which crimes, searching people and vicinities, and whether to arrest or detain people (Reid, 2006). Therefore, the impact that discretion has on the police is beneficial, because it can limit the number of cases that go through the courts since the police are responsible for entering most people into the system. And furthermore, it allows individual officers to make their own decisions, concerning how best to utilize their time and energy and to focus on the more important crimes and community issues (Walker & Katz, 2005). This in turn, allows police officers to work much more efficiently, productively and therefore, give the community in which they serve a higher quality of service, because their own individual judgment is valued “enforcing the spirit of the law, rather than the full letter of the law” (Goldstein, 1963, p. 143). Hence, it would appear a more humanitarian gesture by the police through exercising discretion then by total enforcement, to achieve the same desired end result. For example; effectively dealing with the problem and ensuring the community’s needs are met at the same time.
A third pro to the use of discretion in law enforcement, concerns the variations in the seriousness of offenders behaviors. Every offender police encounter is different, thus police officers have to consider the contextual and mitigating factors as well as the offender themselves and not just the illegality of the offence. Hence, this is where discretion is advantageous in assessing the culpability of an offender. Not everyone can be treated in the same manner as professional criminals, there needs to be exceptions for individual circumstances, which brings police discretion into play. Thus, police officers need to take into consideration the different extenuating circumstances when dealing with an offender(s). Things such as age and mental condition are examples of what can be considered when exercising discretion. For example; someone who has committed a crime could have a mental condition, thus they are not guided by free will and reason in their behavioral choices (Wortley, 2003; Walker & Katz, 2005). By using discretion, police are able to deal with these people differently and ensure that they will not be held criminally liable, in the same way as someone who is deemed “healthy and normal”. This way, police discretion becomes a good thing for society because the police do not have to worry about a moral outcry from society, because children and incompetent individuals are being treated the same as everyone else. Therefore, they can be selective in who they enforce the law to based on individuals involved and the surrounding circumstances, because discretion allows for it.
A final argument in support of police discretion is, that certain situations police encounter require a lot of discretion than when dealing with other crimes. Crimes such as:
And vice crimes (Gaines & Kappeler, 2003; O’Connor, 2004),
require police to use discretion as a way of exploring alternative ways in which to counteract the problem. Instead of enforcing the law as black and white as it might appear, police officers have looked at utilizing outside help that does not require overloading the criminal justice system. Using people such as social workers and academics, who have done numerous empirical studies on the effects of arrest etc. concerning these types of crimes can be bought in at the discretion of police officers for help alternatives (Gaines & Kappeler, 2003). In the past, law enforcement officers were not as interested in dealing with such problems as the above. However, the use of discretion has allowed them to explore such alternatives instead of them getting involved and simply arresting the offender(s).
Argument against police discretion (Cons)
As it has been presented above, discretion in policing holds many positive connotations if exercised wisely. However, as with every controversial issue in criminal justice there are always two opposing sides to the problem. In this case, these are the people who are calling for the abolishment of police discretion, or furthermore, limiting its use by police officers so there is more control over its use. Those arguments against the use of discretion in law enforcement, all basically center on the common themes of: the degree for potential abuse, and the fostering of police corruption.
The first point to note concerning the problems with police discretion is that, there is no uniformed manual to ensure that consistency across the board is achieved. This means that police discretionary practices are going to vary from officer to officer, department to department, and from jurisdiction to jurisdiction. It is left entirely at the hands of individual officers at the scene, in the hope that they will be able to exercise good sound judgment when making discretionary decisions. Thus, without some kind of uniform national guidelines for the use of discretion to outline its scope and limits etc., injustices can and do occur. No two police officers are the same, thus, how can police discretion be exercised fairly to society when officers have different morals and values? What one police officer may justify in one situation is unlikely to be the same as another officer in a similar situation (Goldstein, 1963; Kleinig, 1996). Furthermore, without this consistency, police officers are left wide-open for legal suit actions. By exercising discretion, each individual officer can be held personally accountable because they have a legal obligation to enforce the criminal law and this means “total enforcement.” When police officers use individual discretion they are in essence engaging in selective enforcement, which allows them “to redefine justice in terms of their own priorities, which might not correspond to the priorities of the wider community” (Wortley, 2003, p. 539). Thus again, injustices occur.
A second con concerning police discretion, is that it allows the police to have too much power over making decisions which can affect the life, safety or liberty of an individual (Bargen, 2005). There is no one mechanism for training and guiding police officers when exercising discretion it is left entirely up to that officer’s experience, morals and personal judgment. Thus, police discretion presents a clear danger to society because the average officer can make poor decisions, show bad judgment or interpret laws wrongly. This in turn has a direct consequence over an individual’s life. Furthermore, as the average police officer is not educated enough, using discretion becomes a serious concern (Livingston, 1997; Wortley, 2003). As previously stated, the police are the most active agents of the criminal justice system being the gatekeepers. Hence, by giving them all this discretionary power without the appropriate education and training behind them to fairly exercise it, undesirable disparities based on offender characteristics and potential misuse are much more prominent.
Perhaps the most prominent argument, surrounding those against police discretion is that it has great potential for being abused. Discretion allows for police officers to “perform a duty or refrain from taking action” (Gaines & Kappeler, 2003, p. 251). Therefore, any pre-existing discrimination and prejudice held on behalf of that particular officer comes into play. Police are suppose to enforce equality under the law, people in society should all have equal rights and everybody should be treated the same. However, discretion offers the opportunity for police officers to misuse it, by treating offenders of different gender; race; class; ethnicity; religion; age etc. inappropriately (Pepinsky, 1984; Kleinig, 1996). For example; racial profiling is a good example of police discretion concerning race disparities. The term “driving while black” was coined after numerous studies documented disparities in traffic stops (where most police discretion is used). A recent analysis of all traffic stops done by the Maryland State Police showed, that officers abused their discretion in their decision to stop and ticket African Americans on Interstate 95. This abuse of discretion is what led to a lawsuit against the department (Walker & Katz, 2005). However, it is not only in the case of racial profiling that police discretion is evidently abused. Differential treatment of minority groups especially in the United States has come to be the largest area of documented discretionary abuse by law enforcement. Under law, all groups and citizens within society are supposed to be treated fairly and equally. Nevertheless, the misuse of police discretion only adds to this differential treatment, with police failing to ensure tolerance for diversity among citizens in society (Kelling & Coles, 1996).
A final opposing argument, to discretion in law enforcement is that it breeds corruption within the department. Police corruption usually stems from the misuse of authority and individual officer integrity. Thus, by exercising discretion police officers are at the liberty of really denying certain people their due process rights. In essence, discretion allows officers to harass drug dealers, pimps etc. by using illegal tactics i.e. bribes instead of arresting them (Kleinig, 1996; Walker & Katz, 2005). For example; police officers can lie, steal, buy and sell drugs, and provide protection for those people who are drug-dealers or drug runners. This way corruption is fostered, because officers can personally and financially gain from their illegal discretionary actions as there is no-one to watch or keep control over them.
The use of discretion in the profession of law enforcement has shown to be an inevitable practice. Police officers routinely use their own judgment to make critical decisions that involve the life and liberty of the citizens in the community in which they serve. Thus, it is impossible for discretion to be eliminated. Instead, given the fact that it can be used predominately for good, the best policy is to have strong internal and external controls to prevent it from being abused. This regulation and control over police discretion is what would allow police to go about their duties and respond to citizens in a way that ensures their individual freedoms are protected. But, also allow them to respond to the ambiguities and complexities of certain situations (Kelling & Coles, 1996), hence fairly exercising discretion where and when required.
The best policy recommendations to help control the use of discretion come from internal and external mechanisms, as previously noted. Internally concerns within the police department itself, while external refers to legislation and the community in which police serve.
Firstly, police administrators can help control the use of discretion by their officers through establishing policies and providing greater direction over their officers. This can be done through the giving of orders and supervision, written departmental guidelines, and through better training and educational standards (Gaines & Kappeler, 2003; Walker & Katz, 2005). This way, officers are better able to understand the full complexity of the situations which they might encounter, and make fair discretionary judgment calls.
The second best way to limit the use of police discretion is, through legislative oversight and community citizens. The creation or updating of legislation concerning enacted statutes which “curtail, guides of mandate police actions” (Kelling & Coles, 1996, p. 175), is one of the best ways in which outside sources can maintain control over police discretion. For example; laws and statutes regarding use of force, legislators have enacted laws such as this to restrict an officer’s use of discretion. Thus in turn, having greater control over what police can and cannot do limiting their discretionary powers. In addition to this legislative oversight concerning the external control over limiting police discretion, ordinary everyday citizens within the community play a large part. Civilian review boards (CRBs), are a way of the community providing the police with feedback concerning police service and behavior and also issues of local concern (Gaines & Kappeler, 2003). Thus the community is in essence, an effective outside power in controlling police discretion, as they can provide the police with more specific guidance and report any officer wrongdoing or abuse of power.
This paper has shown an analysis of the controversial issue of police discretion within the criminal justice field. Definitions of this action, along with detailed exploration of its history and discovery were also explored. Furthermore, an in-depth discussion of the main factors making-up the two crucial arguments; for and against the use of discretion in law enforcement, were examined. From this, it can be seen that police discretion is an unavoidable part of policing because it is used in every facet of police work. Its success and potential for abuse rests upon internal and external policies set in place, to provide a stronger and more stringent control over limiting the amount of discretionary decision-making power an officer has.
It is in the opinion of this author, that discretion is needed in law enforcement provided that it is regulated and controlled. Thus, it need not be abolished, just limited so that police officers do not have as much potential to abuse their discretionary powers. Police enforce laws that reflect society’s values and morals. Discretion plays in integral part for any good society, because values and morals change. Therefore, the use of discretion allows for the police to keep up with changing societal expectations, concerning what is acceptable and deviant behavior by today’s standards. Police discretion maintains peace and order within society, because the needs of the community are being considered when police exercise their own judgment. And it is this community policing approach, which police departments are striving to maintain and achieve in some places. Discretion allows for this type of selective law enforcement which is needed, because police realize that not everyone makes a rational choice to commit crime. Hence, provided that they can get a certain type of behavior to stop without using judicial power, then they have in effect used discretion that has resulted in a positive impact upon society.
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