Police Discretion

Police discretion by definition is the power to make decisions of policy and practice. Police have the choice to enforce certain laws and how they will be enforced. "Some law is always or almost always enforced, some is never or almost never enforced, and some is sometimes enforced and sometimes not" (Davis, p.1). Similarly with discretion is that the law may not cover every situation a police officer encounters, so they must use their discretion wisely. Until 1956, people thought of police discretion as "taboo". According to http://faculty.ncwc.edu/toconnor/ 205/205lect09.htm, "The attitude of police administrators was that any deviation from accepted procedures was extralegal and probably a source of corruption. When it was finally exposed, people like the American Friends Service Committee (1971) called for its abolishment, and police administrators sought a clampdown on discretion (administrative rulemaking)." The use of discretion is not necessarily an unpleasant thing as long as it is used properly and it is not being abused. "Adequate mechanisms for control of the exercise of that discretion are also a requisite for more rational decision making. If discretion implies a lack of control - that is, the freedom to choose from among available alternatives completely unfettered by constraints of law or policy - then the idea of controlled discretion may seem to be a self-contradiction" (Gottfredson p.276). Discretion can be used in many different situations. I will be discussing discretion used in dealing with the mentally ill, drunk driving, disorderly conduct, the use of force, and domestic violence. If a police officer uses his/her discretionary power correctly, not only will it help the police officer in their situation, it will help the general community as well.

http://faculty.ncwc.edu/toconnor/205/205lect09.htm quotes Gaines, Kappeler & Vaughn (Policing in America) who state that there are three causes of discretion: offender variables, situation variables, and system variables. Offender variables deal with such things as: "how sometimes police take complaints from adults more seriously than complaints from juveniles; how there is sometimes racial profiling with the use of force and the arresting of an African Americans; how people who are polite to police officers may get compassion from the officer; and even gender and mental health status affect how police handle many incidents. Police sympathize with and only lecture some offenders." Situation variables concern: "police give serious (crime) matters more attention than minor (non-crime) matters; the presence of weapons or acts of resistance often result in police overreaction; the type of property involved in a property crime determines police response and investigatory effort; activities initiated by police are followed up more than activities initiated by citizen complaint; visibility of vice is a major factor in vice enforcement (the three Cs of Vice: Complaints, Commercial, and Conspicuous). Police tend to become much more bureaucratic when witnesses, an audience, or the media are present" (http://faculty.ncwc .edu/toconnor/205/205lect09.htm). The final cause of discretion is system variables. This cause deals with how "police tend to become lenient when the court and correctional systems are clogged; how police tend to become strict when the city needs revenue; the size and structure of the department controls individual discretion; how communities that have sufficient social service resources, like de-tox and mental health facilities, allow officers to use more non-arrest options; and the way in which officers are summoned plays a role in how they will act when they get there" (http://faculty.ncwc.edu/toconnor/205/205lect09.htm).

Linda A. Teplin says that "police involvement with mentally ill persons is grounded in two common law principles: (1) The power and responsibility of the police to protect the safety and welfare of the public, and (2) parens patriae, which dictates protection for disabled citizens such as mentally ill persons." The police must take into consideration the situation of the person that they are trying to help (even if they are there to arrest that person). If an officer encounters a mentally ill person who is acting out irrationally and who is creating a disturbance, the officer has three options that they can do: (1) transport the person to a mental health facility, (2) arrest the person and take them to jail, or (3) to resolve the issue at hand informally; however this decision is up to the discretion of the officer on the call.

Problems arise when police use their discretionary powers when they take into custody drunk drivers. According to http://faculty.ncwc. edu/toconnor/205/205lect09.htm, there are three types of police officers that will make driving under the influence (D.U.I.) arrests. These are "(1) rate busters; (2) moralists, or drunk-haters; and (3) bounty hunters, who wish to collect the overtime pay." Then there are those officers that do not make the necessary arrests because they are lazy; have an opinion that D.U.I.'s are not a severe problem; or have a lack of faith of the arrest in general. (http://faculty.ncwc.edu/toconnor/205/205lect09.htm)

Davis says, "Most arrests for disorderly conduct involve an abuse of power by the arresting officer... Arrest of disorderly conduct usually is not synonymous with 'invoking