Police Discretion 1

Police officers should exercise discretion. By definition, discretion is the making of choices among a number of possible courses of action (Davis, 1969). Discretion is on an important part of criminal justice. Law does not cover every single aspect of our lives. Officers need to make decisions on what laws to be enforced and which people to be arrested when there is not specific law involved. They use discretion as a tool to exercise their power to maintain order in society by taking away individuals independence. Police officers use the decision making process with discretion but, formal training is important to avoid abusing it- due process. They should use discretion to help practice law and public safety. It does help the criminal justice system function more effectively but they need to avoid prejudice. Due process limits the power of police discretion to avoid unnecessary uncertainty in the decision making choices means that law enforcement organizations would be judicially required to do as much as feasible to guide police enforcement through rules (Davis, 1975). Davis believes that open rule making allows the growth of equal justice by limiting vague policy views. The system today allows police offices to use their own discretion to come to a decision on each case which can lead to personal prejudice. The clearer the policy guidelines are the less chances of immoral and serious legal consequence. The fourth and fifth amendments allow police officers to put into effect the law in a judicial matter following probable cause. Police officers have to have probable cause to perform arrests. The establishment of discretion stands is one of most controversial and important power of law enforcement today, even though the use of discretion poses an uncomfortable paradox in a democratic society (Joh, 2007) Police officers often have to make complicated decision; fused decisions can be in proper or improper with the law. The two degrees, the complexity of the situations presented to the police and the complexity of the police response to those situations (Kelling, 1982). It is a

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complex situation when police officers have to deal with a wide variety of situations. People expect police officers to serve and protect, but the people have no clue of how the police force really works. Since there is not clear understanding, society can have misunderstandings regarding policing efforts which can result in conflict between society and police force. Philosophers Ronald Dworkin and H.L.A. Hart have viewed discretion as the hole in the doughnut. The doughnut hole represents discretion. The law and rules that apply with the societies social norms deriving from custom, morality or religion is the doughnut. The hole is where the law runs out and is the modern day acceptance of the old idea of the rule of the law and not men- we follow the laws of the constitution and governed by the law not by the judgment of men. Hart calls it the natural law theory the unwritten body of universal moral principles that underlie the ethical and legal norms by which human conduct is sometimes evaluated and governed (natural law). It is system of the law where current rules fit a lot better than they did with past laws. For example a police officer may not pull you over if you go 5 mph over the speed limit, but the officer has guidelines stating what should be followed. There are many options police officers can make to provide safety for the public when there is no defined law. Police officers can use discretion based on their judgments, choices, and sensitivity when it is not defined as a specific law. Discretion does not mean that police officers can enforce which law they want. They must enforce specific laws, but can use their own judgment to enforce the laws that are not defined; it is just like the idea of the doughnut example from Dworking and H.L.A, Hart. Police officers judgments are based on norms which are defined as standards of proper or acceptable behaviors established by society. The discretion of police officers is bound by norms of the city, community, professional, legal, and morals of society.

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Policing in America by Kappeler and Vaughn breaks discretion into three different categories: Offender variables, Situation variables, and System variables. An Offender variable is when police officers take adult concerns and complains more serious than kids/ juveniles. This type of category is affected by race, status (money), gender, mental health and is what police officers take into account to handle the situation. This variable can raise question of racial or ethnic issues; like how Vagrancy and loitering laws, for example, have been used to deny minorities their rights and to abuse citizens, especially African Americans (Quote in Young, 2011). Situation variables are when more serious crimes are more important than less series crimes. More serious crimes obtain more attention from the media and public resulting in an investigation. Finally, System variable is when there are many legal actions in the court that cause the court to be over crowded. Police officers do not want to keep crowding the court docket. Because of this police officers may become more relaxed with enforcing the less serious laws of the society. Wayne R. Lafave, professor at University of Illinois law, has researched activities about the Fourth amendment and believes that there are reasons why there are non-arrests. Lafave and Davis (1969) believe that police officers feel that the government (legislative) does not want maximum enforcement. This allows cities to make their own norms of when to be use regarding non defined laws. It allows the city to choose whether to relax or strictly punishment action against the law. Citizens may favor police officers, letting a driver go with a warning when speeding 15 mph over the speed limit in the country, but harsher demand punishment if speeding occurs in a neighborhood. It depends on how involved citizens want to be when testifying, filing

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complaints, and demanded arrests. Furthermore, officers do not have all the time in the world; there are other incidents regarding more attention. There are not enough police officers to make sure that all of the laws (severe or not) should be enforced. People do not want officers to exercise discretion; this is usually because they want to avoid abuse of discretion. Public seems unwilling to trust police officers to be responsible. Police can abuse discretion. There are issues like vice crimes, use of force, hate crimes, domestic crimes, and mental illness which causes problems with discretion. The most common are vice crimes, improper use of force, and hate crimes. A Vice crime is a crime against the public order: prostitution, nude dancing, gambling, pornography, illegal sale of alcohol, narcotics, etc. Most vice crimes are unenforceable. If they are enforced it is because of undercover police activity (entrapment, placed evidence, corruption, wrongful searches, and organized crime infiltration). Some people believe that police officers take bribes to let these acts against the law slip through the crack. Police officers need to control themselves and need to learn to limit force. Control/force crime is type of discretion, which is the hardest to describe because there is a fine line between force and abuse. Officers have right to protect themselves and others, they need to follow past examples of police officers, and build good examples for the next generation. Some people feel that the discretion does not specify the amount of force an officer can use. They feel that police officers can use too much force disregarding the handbook made for police officers which describe how much force an officer can use. Hate crimes are another hot topic because crimes are provoked by racial or sexual prejudice. Police officers can be biased against different race or gender. Some police officers

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enforce the laws more harshly due to bias against a particular group while being more lenient with other groups. Officers should be fair and protect everyone equally. Police discretion can be abused but it can also be used as a good way to regulate society. Typically there is not a right or wrong way to use discretion unless there is a specific law that outlines the behavior of officers. Society should establish norms to help police officers with discretion. But discretion does help the society and assist the criminal just system in functioning more effectively. It should to be continued to be used to create a better society.

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References

Balestra, F. New policing strategies in the United States: community and problem-oriented policing Retrieved from http://www.comunidadesegura.org/files/active/0/New%20Policing%20Strategies%20in% 20the%20United%20States.pdf Halliday, G. Issues paper: police discretion. Retrieved from http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&ved=0CEUQF jAD&url=http%3A%2F%2Fwww.wiu.edu%2Fcoehs%2Fleja%2Fcacj%2Fresearch%2Fd ocuments%2Fpast%2Fhaliday.doc&ei=HgdsUv7tGar3iwL1xYB4&usg=AFQjCNHs_dcu walIirBQXb2_aEy0Ssftvw&sig2=H3z4qeBW1234cWxPRLhCdQ Kelling, G.(1999, October). Broken Windows and police discretion. Retrieved from https://www.ncjrs.gov/pdffiles1/nij/178259.pdf Lacey, N. (2008, March). H.L.A. Harts rule of law: the limits of philosophy in historical perspective. Retrieved from http://eprints.lse.ac.uk/3520/1/HLA_Harts_rule_of_law_%28LSERO%29.pdf Lafave, W.(1991). The fourth amendment: A bicentennial check up Retrieved from http://scholar.valpo.edu/cgi/viewcontent.cgi?article=2136&context=vulr Mikhail, J. (2007). Plucking the mask of mystery from its face: jurisprudence and H.L.A. Hart. Retrieved from http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1411&context=facpub Stevens M. (2008, September). Police discretion: defining, causes, areas, and policing alternatives. Retrieved from http://faculty.ncwc.edu/mstevens/205/205lect09.htm Young, B. (2011, April). Police discretion in contemporary America. Retrieved from http://repository.library.georgetown.edu/xmlui/bitstream/handle/10822/553420/youngBer niceBrooks.pdf?sequence=1