Police Discretion

Police Discretion

April 20th , 2008

One aspect of the criminal justice system that has been debated for many years is that of police discretion. Police discretion is defined as the ability of a police officer, a prosecutor, a judge, and a jury to exercise a degree of personal decision making in deciding who is going to be charged or punished for a crime and how they are going to be punished. This basically is saying that there are situations when these law enforcement officers have to use their own personal beliefs and make choices coming from their own morals and ethics. The subject of police discretion was discovered in 1956 by the American Bar Foundation and has been an important problem in criminal justice since that time. When it first started out police discretion was rejected by many people and agencies saying that anything that was not in the rule book was extralegal or a form of police corruption. As the years went on it became something that agencies could deal and could use for common good if used properly and effectively. Police discretion however is not as simple as it seems. With community policing becoming such a big part of law enforcement now and day’s police discretion is an essential part to community policing actually working. Throughout this paper I am going to try and give you a better definition of discretion and also describe the many forms that comes along with it. Furthermore I am going to discuss the common areas where police discretion is found and also give you some of the causes and reasons why police discretion occurs. Also I will give some policy alternatives to try and solve and control the problem of police discretion.

First I would like to try and give you a clear definition of discretion and also talk about the many different forms that it comes in. The definition that I found to be most logical and clear was that of Kenneth Davis a criminal justice author. His definition read: the making of choices from a number of alternatives. Just like everyday people police officers have to make rational choices from their own set of alternatives that is put in front of them. There are 5 different forms of police discretion that have been categorized. The first one is discretion as judgment. This states that discretion is the opposite of routine and habitual obedience. It brings knowledge, skill, and insight to bear in unpredictable ways. Police are not soldiers who must blindly follows orders (Theirs is not to reason why/Theirs is but to do or die). Police must be more than competent at applying the rules; they must adapt those rules to local circumstances in a rule-bound way (Kleinig 1996). This is saying that discretion can be a judgment that is not written in a rule book or that is not a habit of police officers. They are put in a situation where their own judgment must be used not that of the law exactly. The second form of discretion is discretion as choice. This state’s discretion is not just a matter of realizing when you're in the hole of the doughnut, or a "grey area". It involves making personal contributions, judgment calls, exercising autonomy, and individual solutions. It's about the courage to make your own decisions, to have personal input, following your conscience, even if those decisions are reversed later by a superior (Kleinig 1996). This form means that you have the ability to make a choice in a matter where there is grey area. You have the choice to make a discrete decision and use your won judgment in a situation instead of doing it by the book. The third form of discretion is discretion as discernment. This states that Discretion is not just about making "safe" choices, or being "soft". It's about making good, virtuous choices by habit or the wisdom that comes from age (The better part of valor is discretion). Prudence, foresight, the ability to size up people, arguments, and situations. Tactfulness, tolerance, empathy, and being discreet are all forms of discernment (Kleinig 1996). This is basically saying that you should use your wisdom that you have accumulated over your lifetime to make habitual rational and good choices. You should be able to know from experience and what you have learned so far to make the correct decisions in situations. The fourth form of discretion is discretion as liberty. This states that Discretion is not where the law ends, nor is it the same as intellectually deriving principles from rules. It's about permission to act as a free and equal agent, and using that permission in extending the rights and duties of office (under color of law) toward a vision of liberty, inalienable rights, and the kinds of things that no majority, rule, or principle can ever take away (Kleinig 1996). This form appeals more to the rights of people and to being free. This form is trying to say to make decisions keeping in mind that you are a free person and that you are equal to every other human being. The fifth and final form is discretion as license. This form states that Discretion is the opposite of standard expectations. It's the privilege to go against the rules, disobey your superiors, be less than optimal or perfect all the time, all without degenerating the rules or eroding the trust between you, your superiors, or the public. License (not licentiousness) involves a sense of accountability that does not have to be formally recognized or structural (Kleinig 1996). This form is one that I think is the most confusing for some people but is one that has truth to it. It’s basically stating that police have the privilege to go against the rules and disobey their superiors if they believe there decision is for the best.

The next aspect of police discretion that I would like to discuss is causes of why police discretion happens. This subject can be broken up into three variables that influence the amount or type of police discretion. The three variables are offender variables, situation variables, and system variables. Offender variables go as follows: Police take adult complaints more seriously than those made by juveniles. Arrest and force is more likely to be used against African Americans. Citizens who show deference (good demeanor) toward police are treated more leniently. People in middle to upper income brackets receive more and better service from police. Gender and mental health status affect how police handle many incidents. Police sympathize with and only lecture some offenders (Kleinig 1996). For example, from personal experience I believe that teenage drivers get treated differently then adult drivers do. I think that police have a bad idea of what a teen driver is and that they have bad intentions when they are under the age of 18. The second variable I found in my research was situation variables