Running Head: SHOULD POLICE OFFICERS EXERCISE DISCRETION?

Should Police Officers Exercise Discretion?

Katrina Theetge

Salt Lake Community College

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Abstract

This paper explores the controversial topic within law enforcement of whether or not police

officers should exercise discretion. While some believe that discretion is completely necessary

due to the limited resources within our system, others believe that this leaves more room for

human error, bias, and self-promoting decisions to be made. Making decisions to limit the use of

discretion brings challenges of its own, since every case is uniquely different. Some of these

challenges include deciding which policies to put into place, designating who makes such

decisions, and an increased workload among officers, to name a few. While examining the

research I found supporting both sides of the controversy, this paper touches on whether

discretion helps the practice of law enforcement and public safety, the ethical issues it raises,

how using discretion may lead officers to act on their biases, and where my beliefs stand on this

topic.
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Should Police Officers Exercise Discretion?

Discretion can be defined as “the ability of individuals in the criminal justice system to

make operational decisions based on personal judgement instead of formal rules or official

information” (Gaines & Miller 2013). Within the criminal justice system, all officials including

police officers, prosecutors, magistrates, judges, and corrections officers utilize discretion in

their line of work. Some examples of instances where each of these individuals are required to

use discretion would be a police officer deciding to arrest or not arrest a person, prosecutors

deciding whether or not to file charges, judges deciding to impose sentences, or corrections

officers punishing prisoners who misbehave- to name a few.

The topic of whether or not discretion should be exercised within the criminal justice

system can be controversial. Some believe that discretion allows our criminal justice system to

run most effectively considering limited resources, while also increasing professionalism and

allowing officers flexibility to do their jobs. Others could say that discretion allows more room

for error, bias, and intentions made without good faith to be present. This essay will discuss my

beliefs around whether or not police officers should exercise discretion, if it helps the practice of

law enforcement and public safety, the ethical issues it raises, and how when using discretion

officers may use their bias against race, gender, or origin.

As a person who’s only knowledge about the criminal justice system, specifically the

tasks that police officers are assigned, comes from taking an introduction to criminal justice

class, watching the media, TV shows, and having relatives involved in law enforcement, the

topic of discretion was something that I definitely researched before forming an opinion. After
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reading numerous articles about police officers and the pros and cons of exercising discretion, I

came to the conclusion that I do believe police officers should have this ability.

The most important reason I found among my research, and the main reason I support the

ability of officers to exercise discretion, is because of the lack of resources within the criminal

justice system. Since law enforcement agencies do not have the time, staff, or funds to

investigate every crime that occurs, officials must decide where it is best suited to expend their

limited resources. Increasing caseloads and overcrowding in prisons and jails are major issues

our criminal justice system is facing, but the use of discretion allows only what are viewed as the

most important cases to be examined by law enforcement agencies. Therefore, the use of

discretion allows for serious offenses such as rape, aggrivated assault, and domestic violence to

be handled by the law in comparison to crimes such as petty theft or traffic violations. The use of

discretion allows for police officers to make decisions based on the police service’s values, the

individual officer’s values, and the values of the community in which they serve.

In their book, ​Ethics in Law Enforcement,​ Steve McCartney and Rick Parent examine

why discretion is needed due to the limited resources within the Criminal Justice system. They

state, “discretion among police officers will always be mandatory due to the inevitable lack of

resources and the need for an efficient service” (n.d.). They then delve deeper into how

exercising discretion helps the criminal justice system function more effectively and efficiently.

“Decisions, ethically made, will allow for charges to be limited to only those that matter and will

render the police service more efficient in prosecuting only such offences” (n.d.). Although

efficiency is definitely a benefit, McCartney and Parent recognize that “the end result should

never be efficiency at the expense of human rights and ethical policing” (n.d).
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For those who want to reduce the amount of discretion exercised among police officers,

the first challenge arises when discussing who would make the decisions as to which crimes

would be mandatory arrests and which crimes would be off limits to arrest for. Police Officer

Christopher Hawk explains in an article titled “Do Police Officers Have Too Much or Too Little

Discretion”, that “one of the reasons police officers have discretion is so that they may take the

totality of the circumstances into consideration while investigating a particular incident to help

determine the need for an arrest” (2014). He then continues by saying, “While many crimes are

fairly straightforward, there are also those investigations which require consideration of other

issues” (2014). Officer Hawk presents an example, telling readers to imagine that there is a law

in place stating that all people caught driving with a revoked driver’s license be arrested. He then

proposes the question, what if an officer stops a car and the driver has had their license revoked,

but is taking their child to the hospital emergency room? Because each situation is uniquely

different, it’s hard to say whether or not a single solution would be the best solution every time.

Another drawback when examining discretion is that it may allow more room for human

error. The way that our police system is set up, the police officers given the most ability to use

discretion are oftentimes the newest members of the police force and have limited experience.

These officers are left unsupervised for large portions of their day, which is often because their

supervisors are given more administrative tasks that limit their ability to be on the streets and

share their wisdom. Without supervision, one may argue that officers will “make decisions that

are self-promoting and in opposition to organizational goals” (McCartney & Parent, n.d), which

could lead an officer “fabricate evidence, look for guilt rather than truth, summarize statements

with bias, handle exhibits poorly, and fail to disclose evidence” (McCartney & Parent, n.d.).
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In an effort to minimize the amount of discretion officers have to use, some policies have

been put into place and later evaluated on their efficiency and how effective they were in

reducing discretionary mistakes. In British Columbia, a policy introudced in 1993 and later

revised in 2010, titled “The Violence Against Women in Relationships” was put into place,

which encouraged police officers to charge domestic asssault offenders instead of “informally

resolve the situation” (McCartney & Parent, n.d.). An evaluation of the policy showed that

“officers were concerned about the ethics of positive arrest policies in cases where they would

not have arrested had it been left to their discretion” (McCartney & Parent, n.d). Officers were

also concerned with the possibility of worsening a situation due to arrest, and encountered other

issues such as an increased workload and reduced professionalism.

Another challenge associated with the limitation of an officer’s use of discretion is the

reduced ability of an officer to use his/her intuition. An article written in 2007 by Lieutenant Jim

Glennon, titled “Intuition on the Street: Harnessing the Power of the Sixth Sense” explains how

within milliseconds of meeting someone, “our senses begin observing and evaluating stimuli.

Within two seconds, if not quicker, our mind jumps to a series of deductions about the other

person: good, bad, dangerous, safe, someone to avoid, or someone to trust”. Lieutenant Glennon

then goes on to say, “studies show, those evaluations tend to be incredibly accurate. Law

enforcement officers absolutely need to understand and learn to focus on those two seconds

because those seconds can literally mean the difference between life and death, success and

failure”(2007).

A separate article, written by Lieutenant Dave Spaulding in 2005, titled “Intuitive

Decision Making” also touches on the importance of intuition within the line of duty. Lieutenant
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Spaulding says in the introduction to his article, “being able to see a situation unfold and ‘know’

what to do in an instant is critical”. Spaulding then goes on to introduce the work of scientist

Gary Klein, who has researched “crisis decision making” with the intent to help “government

agencies and private corporations enhance the performance of their personnel”(2005). Spaulding

explains, “for Klein, the importance of training lies in the development of intuition based on

learning skill sets. In a crisis situation, sometimes it’s the only thing you have to fall back

on”(2005).

While some assignments that officers are called to can be very routine and simple, others

can be very complex and dangerous. I believe that a person’s greatest asset is that of the

intuition, and limiting the use of discretion simultaneously limits a police officer’s ability to use

his/her gut instinct. Just as Lieutenants Glennon and Spaulding described in the articles

mentioned above, listening to the intuition is often key to finding the best approach to handling a

situation. Limiting this ability could not only put the officer’s life at greater risk, but potentially

the lives of victims, innocent bystanders, and overall result in more harm than good being done.

Another issue that arises when assessing a police officer’s ability to exercise discretion is

the increased ability to act on their personal biases, whether it be race, gender, or origin. An

article written in 2015 by retired police captain of the Denver PD, Tracie Keesee, explains that

although statistics show higher rates for incarceration and death by police among Latino and

African-American males, it is not the result of overt racism. Studies have found that it is the

result of unconscious bias, formed from our surroundings and the media, that are responsible for

these statistics (Keesee, 2015). Keesee proposes that the first step in helping to eliminate bias

among police officers is to introduce awareness training, especially among the police who hold
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leadership positions. Keesee writes, “introducing the concept of implicit bias through

conversational training allows for discussion of how the brain creates and stores stereotypical

references”(2015). She also suggests using Implicit Association Tests, which “measure the

strength between stereotypical associations” (2015), to coincide with the awareness training.

The two other solutions Keesee offers up are to emphasize the importance of community

policing, and implement policies to reduce the impact of bias. Building a relationship between

police officers and the citizens of the community in which they serve could help reduce any

biases that each may hold against another. This relationship could create a “working

understanding of how community and police believe their interactions should go and what safety

looks like to them” (Keesee, 2015). As far as implementing policies to help reduce the impact of

bias, Keesee explains that some states, specifically Connecticut, have already “implemented

policies that simply state that race can’t be a factor, or can only be one factor, in decisions to stop

a vehicle, make arrests, and so on” (2015). For officers who are explicitly bias, Keese argues that

the behavior must be immediately addressed by a supervisor and formally disciplined. However,

in cases where there is implicit bias, Keese argues that “the best response is facilitating positive

contact across groups, conversation, and training that aims to raise awareness” (2015). Within

discretion, receiving education on how to recognize which biases an individual may hold could

be a very effective first step in ensuring all groups of race, gender, and origin, are treated fairly.

Although the use of discretion does raise ethical issues such as bias, and potentially

leaves room for error among less experienced police officers, I do not believe that discretion is

something that should be eliminated. I think that a police officer’s ability to use discretion brings

a human aspect to the system, and supports the whole idea and meaning behind community
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policing. I believe that discretion allows officers the flexibility to do their job and make decisions

during high stress situations where an ideal solution may not even exist. Especially considering

the lack of resources within our criminal justice system, discretion allows for more serious

crimes to be made priority so that the community can be a safer place. Overall, I believe that

discretion allows for everything to run more efficiently and effectively and is both a benefit and

necessity to our criminal justice system.

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References

Gaines, L. K., & Miller, R. C. (2013). ​Criminal Justice in Action(​ 7th ed.). Cengage Learning.

Glennon, J. (2007, December 13). Intuition on the street: Harnessing the power of the sixth

sense. Retrieved from

https://www.policeone.com/health-fitness/articles/1639260-Intuition-on-the-street-Harnes

sing-the-power-of-the-sixth-sense/

Hawk, C. (2014, February 19). Do police officers have too much or too little discretion?

Retrieved from

https://www.policeone.com/investigations/articles/6878880-Do-police-officers-have-too-

much-or-too-little-discretion/

Keesee, T. L. (2015, July 2). Three Ways to Reduce Implicit Bias in Policing. Retrieved from

https://greatergood.berkeley.edu/article/item/three_ways_to_reduce_implicit_bias_in_pol

icing

McCartney, S., & Parent, R. (n.d.). 7.1 The Ethics Surrounding Discretion. In ​Ethics in Law

Enforcement​. Retrieved from

https://opentextbc.ca/ethicsinlawenforcement/chapter/7-1-the-ethics-surrounding-discreti

on/

Spaulding, D. (2005, March 01). Intuitive Decision Making. Retrieved from

https://www.policemag.com/339334/intuitive-decision-making