Kyle Vincent

CJ-1010
SLCC Fall 2014

Police Discretion

A civilization and its inhabitants are largely at the mercy of the justice system that is
simple enough to understand when the rules are laid out and the punishment is straightforward.
But how simple is it really when those that enforce the system are only human and susceptible to
the same things that ail the rest of the population, things such as racism, profiling, and rash
judgment. Officers are under loads of pressure to make the right decision in a situation that could
prove extremely influential on the rest of the population, in this moment we come to question the
discretion of an individual in such a powerful position. Discretion is defined as the ability of
individuals in the criminal justice system to make operational decisions based on personal
judgment instead of formal rules or official information1. The idea of discretion is a bit of a scary
one when you really start to think about it because of how something as simple as a decision can
become monumental when given to a person with power. In order to learn more about such a
controversial topic I started my research with a few simple questions. Does police discretion
offer the public a significant amount of safety? and Is police discretion too often a mask for
ethical dilemmas?

In Probation and Parole Officers and Discretionary Decision-Making: Responses to

Technical and Criminal Violations Mark Jones and John Kerbs, wanted to take a further look at
discretion and how it is at work in real world situations. Their research led them to develop two
views on discretion. While one view showed a loose form of discretion that would face problems
in a sort of service-oriented way, while the second view showed a more strict approach in which
officers would work on their own agenda twisting justice based on their own opinions and
beliefs, a more legalistic-oriented approach2. However two views based on such a difficult idea
to measure can sometimes be twisted in their own ways. There are many different factors that
play into a discretionary decision and it is extremely rare that one specific factor or characteristic
is all that plays into what decision is made. It is more often an accumulation of small variables
that force a decision. The reason that often times police discretion is criticized is because one of
those small variables appears so significant compared to the others and people do not recognize
the rest of the facts. Until the full picture is recognized the real answer is never seen. Four factors
are generally present when discretionary action is required by an officer.

1. Nature of the Criminal Act- The severity of the crime is often the first indicator to what
an officer will do and if the crime is not as severe the officer is more likely to let it slide.

2. Attitude of the Offender- If the offender is acting disorderly and is not cooperative the
officer is much less likely to ignore the offense, assuming that the offense is not particularly
severe.

3. Victim/Offender relationship- Sometimes the issue can be family related or more

personal and at times can influence the officer to let the two parties sort it out. If the offense is
between two individuals of no relation it may be seen as more severe.

4. Department Policy- Different departments are subject to some changes in their actions.
Sometimes an officer is bound to his departmental duties and must make a decision not because
he believes that it is the right decision but because the decision was not his in the first place3.

In such a large world with so many people it is not possible for law enforcement to
regulate every crime or issue that arises. There is neither the time nor the space to find and arrest
every criminal and because of this officers must choose their battles and use their discretion to
decide which problems are the most severe, and need to be dealt with in a timely manner. They
will always try to get to every issue but might not always make it when more pressing matters
arise. And discretion is used all across the board from the officer to the prosecution, to the
judges. All are required to use their discretion to decide which criminals pose the most threat to
the society. It is not a perfect system by any means but with so many issues and so few officers it
is about as good as it can get.

Unfortunately a discretionary decision can be made based on personal values, desires,

opinions, etc. Officers are just as susceptible as the rest of society when it comes to bad
judgment and can occasionally forget that they are part of a greater system that should be an
example to society. Officers have a duty to society to remain a person of unquestionable good
ethics as well as being a figure of trust and security to the people it protects. As said before it is
not a perfect system and there is no way to perfectly regulate an officers decisions before they
occur.

Chris Eskridge writes about the impossibility of a perfect justice system in an article
called Criminal Justice: Concepts and issues. Eskridge points out that despite best efforts the
innocent are occasionally punished while the guilty escape all punishment, he goes on to say that

there are cases where the guilty are punished sometimes more or less than what is necessary. It is
not a fair outcome but it has become largely unavoidable. Eskridge also explains what he
believes to be the perfect justice system is one that has four characteristics. The absolute ability
to identify law violators, the absolute ability to apprehend law violators, the absolute ability to
punish law violators, and the absolute ability to identify the intent of law violators4. I completely
agree with Eskridge on this, the absolute ability to do all of these things would result in a perfect
law system there just happen to be too many obstacles in the way for us to achieve this kind of
system and the one obstacle that I believe prevents this the most is police discretion.

Often times I think of the future and what it will be like in hundreds of even thousands of
years. I think about the ways that our world will change and the ways in which our society will
change. While writing this paper I started to think about how law enforcement could change,
specifically police officers and police discretion. If there were some way to find one individual
wise enough to make all of the correct decisions in regards to justice as well as proper ethics this
system would be flawless but that is an unfortunate fantasy that we can only dream about in the
future. We contemplate the possibility of robots who are able to make the right decisions in any
situation because they are not bound to ideas such as racism or discrimination. We see this in
stories such as I Robot by Isaac Asimov, but it is all simple fantasy and we have to work with
what we have at the moment. We have imperfect officers and we have an imperfect system of
law but for creatures so full of opinions and different ideas I think that we have done pretty well
so far.

I started this research paper thinking that I was going to have a conclusion that would
condemn the discretion of law enforcement officers as unfair and entirely unjust. But while I was

researching and writing I realized that even though the unfair and unjust decisions do exist in our
world there are plenty of decisions made by officers that are fair, kind, and ethically sound, they
are just the decisions that we dont often hear about. They are the decisions that do not receive
the recognition that they deserve. Police discretion is a thing of necessity, it regulates crime and
allows us to feel safe and live our lives as we know them. At some point in the future it could
become extinct, we could develop a system that is closer to perfection or possibly one that is
further, but speculation does not change where we are now and where we are now is good.

REFERENCES

Eskridge, C.W. (2004). Justice and the American Justice Network. In C. W. Eskridge
(Ed.),Criminal justice: Concepts and issues (pp. 8-14). Los Angeles, CA: Roxbury
Publishing
Jones, Mark; Kerbs, John. (2007) Probation and Parole Officers Discretionary DecisionMaking: Responses to Technical and Criminal Violations. Federal Probation Volume 71
number 1.

Gaines, Larry and Miller, Roger, Criminal Justice in Action 2013

Young, Bernice B., Police Discretion in Contemporary America, School of Continuing
Studies, 4 April 2011