Police discretion refers to the ability of a police officer to make a decision at a crime scene. The officer makes a decision whether or not to make an arrest, write a ticket, give a warning or apply for arrest warrants later. For example, when a police officer directs a motorist to pull over for reckless driving or minor offense like not obeying traffic signs, he/she has a choice whether to give a ticket or a warning to the motorist. However, these measures are limited to minor offenses. This means that in more serious offenses like felony, “the officers are compelled to arrest on site” (Davis, 1975, p.34).
The Pros of Police Discretion
As a form of judgment, police discretion calls for knowledge, skills and insights that are needed by the police officers in unpredictable situations. These make the police competent enough to apply rules and regulations as they are supposed to enforce while making decisions on local circumstances in a way that does not contravene the laws of the land. Similarly, police discretion shows a form of independence in the thinking of the police officers as opposed to other disciplined forces like the army where orders are to be strictly adhered to.
Police discretion as choice involves making personal contributions, judgment calls as well as exercising autonomy and individual solutions by the officers. It improves the officers’ courage to make personal decisions, inputs and respect to other officers’ conscience even if the decisions made are later on revoked by their superior.
Discretion as a form of discernment revolves around making good, virtuous decisions and choices by habit. This is so because police discretion is sometimes seen as a show of leniency and taking soft decisions. However, this is not usually true since it takes a “high degree of tactfulness, tolerance, empathy, prudence and foresight to make a decision in a situation that calls for discretion” (Kadish, 1973, p.73).
Discretion as liberty allows the police officers to act as a free and equal agent. This ability allow the officer to extend the rights and duties of the office towards the vision of liberty, inalienable rights and the kind of things that no majority rule or principle can ever take away.
Discretion as a form of license offers the police officers the privilege of going against the rules, disobeying superiors, though not all the time, without degenerating the rules or creating a frosty relationship with the seniors and the public. It also helps the officers to develop a culture of accountability for every decision they make (Kadish, 1973).
The Cons of Police Discretion
Statutory laws and common laws do not cover every potential situation a police officer may encounter. This means that the offender may be let off the hook usually in the circumstances of discretion. If the police officers do not carry out their duties diligently, then there are chances that some law-breakers will be let off the hook with reasons of cronyism, relations and corruption all in the name of police discretion.
In the enforcement of law and order the police officers are often barred from using excessive force. For this reason, the general public often thinks and hopes that their encounter with the law enforcement officers should always be smooth and soft. Apparently, this is usually not the case even in discretion. In this case, “the public have often defied orders of the police officers exercising discretion thus resulting into use of excessive force by the police” (Louis, 2011, p.46).
Police discretion, if abused, can also lead to soft law enforcement mechanism. This may in turn act as a motivation to the public in general to commit offences. Proper prudence and high degree of self esteem is required in the law enforcement officers to ensure that discretion does not act as a soft mechanism of punishing law breakers (Louis, 2011).
Police discretion may also be seen as a form of granting enforcement officers unlimited authority to do whatever they want. This occurs when unscrupulous officers use discretion privileges as kangaroo courts for their own self interests. This however is only possible in cases where there is lack of proper supervision of the officers and cases where the general public find it normal in getting involved in such corrupt moves by the law enforcers.
It would be almost absolutely impossible for the police department to exist without the police discretion privileges. This is because the officers would be working like mechanical instrument that arrest any law breaker in sight. Every single person for however minor the offence committed would be arrested and taken to court for the charges. In this case, there is a likelihood of a backlog of cases for the crimes are likely to be in large numbers.
Similarly, the officers are likely to be overwhelmed by the number of arrests they are supposed to make. This is because police discretion often allows them to warn minor offenders and let them off the hook. In the absence of discretion therefore, “the officers would be required by law to arrest every person breaking the law” (Louis, 2011, p.121).
Police Discretion at Different Level
Discretion is exercised throughout all levels of policing. Within the highest levels in the chain of command, the police discretion is used for example in deciding to target certain areas of crime with the use of initiatives or policies, possibly through the influence of government and the line department. This may include the use of reform instruments developed by the government.
In the middle level ranks of the police force, decisions may include proactive decisions towards the fight of crime in the areas of jurisdiction. For example, in the Greater Manchester Police area in October 2003, the police provided high level of visible policing around campuses, students’ halls and traditional student bed-sit areas. The aim of this was mainly to combat the usual high levels of mugging and robbery around such areas especially during the autumn. At the lower ends of seniority in the police force, discretion is practiced mainly in the daily routine encounters with petty offenders. The officers in charge may come into contacts with such persons as motorists not obeying the traffic signs and warn them instead of arresting them.
Discretion in the Patrol Department
This is the department where police discretion is practiced most. This is mainly because of the availability of extremely high number of offences committed by the motorists, cyclists and even the pedestrians. Such minor offenses where the police may exercise discretion may include; a motorist ignoring traffic signs, pedestrians not walking along the designated path, pedestrians not using the footbridges and crossing the root in areas without zebra-crossing among other offenses. Police discretion in this sector helps in “correction of simple crimes that would otherwise take long if the judicial process was to be followed to the letter” (Davis, 1975, p.39).
Discretion in the Detective Department
Justice requires equal protection of the laws and an equal opportunity to have one’s interest represented and protected. Similarly, everyone has a right to equal consideration of his or her harms and interest by the police. In case of a rape victim for example, police discretion is often exercised to decide whether or not there was a crime, whether to investigate a crime and whether to investigate a crime vigorously. In this case, the officers involved should not be informed by the sexist biases. There are situations where rape cases are “discounted on grounds that there is evidence that the victim did not conform to conventional moral behavior as might be indicated by drinking, style of clothing and apparent sexual lifestyles” (McGregory, 1996, p.89).
Similarly, detectives may deflect attention from their decision by choosing a lower visibility way of not enforcing the law. In this case, the detectives power to investigate crime allows them to construct facts and define what the law is in such a way that it make sense to the victims. In this case, the detectives usually adopt a series of routines and practices that allow them to separate many non-bias related crimes that they encounter from the bias-motivated ones. In this circumstance, the detectives are able to negotiate the ambiguity in the law and in the actual crime through the use of categorization and the examination of the context when they evaluate the event.
References
1. Bell, J. (2002). Policing Hatred: Law Enforcement, Civil Rights and Hate Crime. New York: New York University Press.
2. Davis, K.C. (1975). Police Discretion. Illinois. West Publishing Co. "The favorable and the unfavorable factors of Police Discretion."
Surez, Mike W. "Criminal Justice Leadership Strategies and Practices." N.p., n.d. Web. 04 Apr. 2016. <http://criminaljusticeleadership.blogspot.com/>.
3. Kadish, M. (1973). Discretion to Disobey: A Study of Lawful Departures from Legal Rules. Stanford: Stanford University Press.
4. Louis, K. (2011). Ten Myths about Police Discretion. Retrieved on 25th May, 2012 from http://www.voices.yahoo.com/ten-myths-police-discretion-7650904.htl?cat=17
5. McGregor, J. (1996). From State of Nature to Mayberry. London: Rowan & Littlefield, Inc.
