Police officers are faced each day with a vast array of situations with which they must deal. No two situations they encounter are ever the same, even when examines a large number of situations over an extended period of time. The officers are usually in the position of having to make decisions on how to handle a specific matter alone, or with little additional advice and without immediate supervision. This is the heart of police discretion. As we shall find, the exercise of discretion by police has benefits and problems associated with such exercise. The unfettered use of discretion can lead to the denial of citizen rights. Strategies that control the use of discretion are, therefore, of particular import. The benefits and problems of police discretion and controlling strategies are the focus herein.
DISCRETION – BENEFITS AND PROBLEMS
According to Engel (2007), “By discretion, we in the field of criminal justice are generally referring to official actions by criminal justice officials, based on individuals’ judgments about the best course of action.” The exercise of discretion can be placed into three broad categories.
Discretion can be found in a police officer’s decision to use a legal sanction. That is, an officer exercises discretion in whether to stop a traffic offender, to give a ticket, or to make and arrest. Perhaps, the ultimate discretionary application of the legal sanction is in the area of the use of force; e.g., whether to use force, the amount of force to use, etc. (Hunter 1985; Terrill et al. 2002.) Another broad form of discretion used by a police officers involves the decisions made in how distributing the officer’s time among the various service duties (Engel 2007). For example, an officer on patrol (i.e., not responding to a call), sees a stranded motorist. Stopping to assist the motorist would be a service duty. The officer can exercise discretion by deciding whether or not to stop to assist, the amount of time spent in assisting, or the nature of the assistance. A third broad form of discretion identified by Engel (2007) involves the other activities (non-sanction, non-service) that an officer performs, such as community policing.
Goldstein, on the other hand, describes police discretion in terms of (1) choosing objectives (pg. 95); (2) choosing methods of intervention (pg. 97); (3) choosing how to dispose of cases (pg. 97); (4) choosing investigative measures (pg. 98); (5) choosing field procedures (pg. 99); and (6) issuing permits and licenses (pg. 100).
With such a broad volume of discretion – seemingly in nearly every aspect of police decision-making – what benefit does this level of discretion bring? Goldstein and Walker and Katz provide insight to the benefits.
According to Goldstein (1977) the nature of the police work and the work environment require the use of discretion. As mentioned in the opening, police officers operate in an environment where they are frequently alone in their contacts with citizens and such work is low-visibility (Goldstein 1977). Decisions must be made very quickly, usually without time for input from another source. This is despite the fact that a quasi-military, bureaucratic structure exists for the department as a whole – a structure based on a cohesive chain-of-command (Bittner 1970.)
Goldstein (1977) and Walker and Katz (2002) also point out that the very nature of “the law” is such that, in many cases, officers discretion extends to interpreting the meaning of the statutory text. (See, generally, Goldstein 1997, pp. 108-111.) It becomes, therefore, impossible to enforce the law equally due to the wide interpretation that can be a particular law.
Further, communities cannot agree on what constitutes criminal behavior or the level to which criminal behavior should be sanctioned or ignored. A prime example is that of the skid-rows areas. The approach taken by most police in dealing with the skid-row “problem” or risk to normal society is, according to Bittner (1967) is one of containment. Under such an approach, officers use their discretion by allowing certain crimes in the skid-row area to exist with little, if any police intervention. The police might overlook drunkenness, drug use, or prostitution as long as they remain in the skid-row area or do not grow to endanger normal society or bring severe threats to the occupants of the area.
Another benefit from the use of discretion is one based in economics or resource allocation. Simply put, there just are not enough police, jails, courts, prisons, or community-based correctional programs to handle all of those who would be processed through the criminal justice system, if the police officer did not exercise discretion in his or her daily decision-making (Goldstein 1977). If every encounter required specific enforcement action or exercise of a service function, then officers would be completely occupied all of the time in just those functions. That is not to mention the extremely large number of additional officers that would be needed to handle the work load and the large financial drain of the public coffers (Engel 2007).
While there are certainly benefits to the police officer’s use of discretion, there are certain problems associated with the use as well.
The failure of communities to have consensus on what constitutes criminal behavior or what approach should be taken in dealing with a communities problems and the vagueness of the “law on the book” were mentioned, supra, as benefits to discretion because it gives the officer an ability to mold his or her official behavior to the environment in which the officer operated. There is, however, a contrary interpretation to this. In particular, legislatures and communities are all too aware that officers are able to exercise discretion. Vagueness in the drafting of the language of a statute may be built in to specifically allow for this discretion (Goldstein 1977; Walker & Katz 2002). As such, it negates the duty of the legislature to create laws that are easily understood by the public – that is to put the public on notice as to what is violative of the statute. [FN1]
The fact that officers are all different and exercise discretion differently (Wilson 1968; Muir 1977; Klinger 1997) also creates a problem with the public. That problem is one of lack of consistency. Because each officer acts differently in any given situation, it becomes difficult for a citizen to know what behavior they can expect from an officer, or the behavior the officer expects from them in the situation. To some extent this can create distrust between the public and the police, which in turn can lead to unnecessary confrontations between the two.
However, the greatest part of the problematic nature of the use of discretion is found in its uncontrolled use. We can find particular wrong in uncontrolled use of discretion in the area of violation of individual rights, particularly those requiring due process of law and equal protection of the law, protection from unreasonable searches and seizures, and protection against compelled self-incrimination (See, generally, Walker and Katz 2002).
Included within this protection of individual rights is the use of force (Hunt 1985; Van Maanen 1978). Without a strong exercise of control over an officer’s use of force, citizens would be at the mercy of a police force able to exercise extreme amounts of physical control over them with little, or no, provocation, or at a level that is not proportional to the situation at hand (Hunt 1985; Klockars 1980).
The use of excessive force, violation of due process and equal protection under the law considerations, and violation of other guaranteed individual rights creates a problem beyond that of the individual. In particular the community itself is harmed and the relationship between the police and community along with it (Engel 2007; Bittner 1974).
Controlling Discretion – Strategies
Elimination of police discretion is not a realistically attainable goal (Goldstein 1977). As discussed previously there is a need and a place for the exercise of police discretion (see, e.g., Goldstein 1977; Walker & Katz 2002; Engel 2007). Nonetheless, the problems associated with the use of discretion requires the use of controlling mechanisms, such as implementation of departmental policies and procedures on the use of discretion and laws that limit the officer’s use of discretion. Establishment of better supervision of patrol officers also serves as a controlling method.
Walker and Katz (2002) noted that the development of policies and procedures on the use of deadly force had a significant impact in New York City. They stated that after the NYC Police Department implemented a “defense of life” policy, the “department’s new policy reduced firearms discharges by 30 percent. As other departments adopted similar policies, the number of citizens shot and killed by the police nationwide dropped by 50 percent between 1970 and 1984. At the same time, the ratio of blacks to white shot and killed fell by 50 percent” (Walker and Katz 2002, p. 45).
Walker and Katz (2002) also note that legislatures have taken strides to reduce police use of discretion. These take the form of “zero-tolerance” laws that require the use of a police sanction (i.e., arrest) for certain types of crimes. Typically, domestic violence crimes, firearm crimes and certain drug crimes fit into this category (Walker and Katz 2002). In a similar fashion, some departments adopt policies relating to domestic dispute cases where there is no allegation of domestic violence which may require that one of the “combatants” in a non-violent domestic dispute must be removed from the residence in order to create a “cooling down” period. Communities, particularly business communities, can also create a zero-tolerance environment where all shoplifters are prosecuted, thereby requiring police intervention.
Some of the very reasons for or benefits of police discretion stand in opposition to some of these control mechanisms. The low-visibility of the officer’s environment (Goldstein 1977) is not one that can be controlled to such an extent as to impact the use of discretion. Goldstein’s (1977) identification of the functions of the officer as requiring quick decision-making also seems to be an area that cannot be modified significantly through policies or procedures, although training would likely develop better decision-making skills. Further, Goldstein (1977) identifies the vagueness issues under which an officer must operate. Goldstein, would, it would seem, question the viability of policies and procedures and zero-tolerance laws.
Other authors and researchers would point to the lack of communities’ ability to come to consensus. Bittner (1967) and Goldstein (1977) discuss this lack of consensus. Bittner (1967) particularly notes the “demands” of one part of the community that the police contain a perceived undesirable area through the use of discretionary tactics that would be found unacceptable outside the contained area. Klockars (1980) also notes a desire from the community that the police behave in an extra-legal manner in some circumstances.
Wilson (1968), VanMaanen (1974) and Muir (1977) all report on the differences in the make-up of police officers. They identify a number of typologies of police officers and discretion and reaction typologies. Human nature would seem, therefore, to stand in the way of some control mechanisms. In addition, just as the officers have certain characteristics or typologies, so do those who supervise them (Engel 2003). Most notable from Engel’s study (2003) is that there is not a high correlation between what the officers believe their supervisors’ priorities were and what the actual priorities were. This could easily stand in the way of implementation of discretion controlling mechanisms.
Police discretion benefits the overall police function in support of the community goals because it is responsive to the needs of the environments in which police responsibilities function. It provides for the quick, sometimes split second, decision-making process that is involved. It allows for a certain amount of vagueness the law, thereby allowing officers to deal with marginal situations as best meets immediate needs of the situation. It also serves to reduce the number of resources necessary to provide a workable criminal justice system.
This benefit exists so long as the use of discretion does not become uncontrolled. The uncontrolled use of discretion is likely to lead to the infringement of important individual rights protected by the Constitution and laws of the United States and the various States. The relationship between the police and community is thereby harmed.
The best methods of controlling discretion are found in the establishment of policies and procedures and the enactment of laws that put reasonable restraints on the use of discretion. Discretion should not, in fact, cannot, be eliminated for many of the reasons cited as benefits of police discretion. Further, human nature itself – the personalities and characteristics of officers and their supervisors – will stand in the way of complete control of discretion.
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Engel, R. S. 2007. Module materials.
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1. It is worth noting, however, that the legislature can go too far in building in vagueness. A criminal statute can be found to violate the Due Process Clause of the 5th and 14th Amendments which require that a criminal statute state explicitly and definitely what acts are prohibited so as to provide fair warning and to rule out arbitrary enforcement.