Chapter Eight: Police Discretion
Lecture Outline
I. Introduction
A. Police officers routinely exercise discretion as a part of their job
B. Discretionary decisions affect citizens' lives
II. Discretion in police work--examples of police discretion
A. Domestic violence arrests
B. Mental health commitments
C. Traffic tickets
D. Juvenile court referrals
E. Deadly force
III. A definition of discretion
A. Elements
1. An official action
2. By a criminal justice official
3. Based on an individual's judgment about the best course of action
B. Power to exercise discretion is not limited except by law and administrative policy
C. Discretion is not confined to the police
1. Series of discretionary decisions--arrest through prosecution, trial,
sentencing and parole release
IV. Aspects of police discretion
A. Street-level bureaucrats
1. Lowest-ranking employees (patrol officers) exercise the greatest
amount of discretion
2. Officers are "gatekeepers" of the criminal justice system and determine
the system's workload
3. Police discretion determines public policy
B. Potential abuse of discretion
1. Misuse of discretion can result in:
a. abuse of citizens
b. ineffective management of a police department
2. Potential problems
a. discrimination
b. denial of due process
c. police-community relations problems
d. poor personnel management
e. poor planning and policy development
C. Positive uses of discretion
1. Proper exercise of professional judgment
2. Effective use of scarce resources
3. Individualized justice
4. Sound public policy
V. Decision points and decision makers
A. Police discretion is not limited to arrest
1. Officers at different ranks make discretionary decisions on a wide range of actions
2. Discretion increases as one moves down the organization
B. Patrol officer decisions
1. To conduct a high speed pursuit
2. To stop, question, or frisk a suspect
3. To make an arrest
C. Order maintenance decisions
1. To mediate a domestic dispute rather than make an arrest
2. To refer a person to a social service agency (e.g., alcohol abuse treatment)
3. To commit a mentally disturbed person to a mental health facility
D. Criminal investigation decisions
1. To stop an investigation of a crime due to lack of leads
2. To seek a warrant for a search
3. To conduct a stake-out
E. Law enforcement policy decisions
1. To give high priority to traffic law violations
2. To crack down on prostitution
3. To give social gambling low priority
VI. Underlying sources of police discretion
A. The nature of criminal law
1. Definitions of crime are vague; officer on the street has to determine
if the law applies to an incident
2. Conflicting expectations about what behavior should be illegal; law criminalizes
many behaviors that citizens think are acceptable
(EX: gambling, drinking, certain forms of sexual behavior)
3. Social and medical problems; officers must decide if arrest or referral to social
service agency is the best response (EX: homelessness or chronic alcohol abuse)
B. The work environment of policing
1. Patrol is conducted by one or two officer units
2. Little direct supervision
3. Low-visibility work
C. Limited police resources
1. Police agencies are caught between enforcing the law and limited resources;
full enforcement of the law is not possible
(EX: an arrest could take hours)
2. Discretion allows officers to make decisions about how best to use:
a. time
b. resources
c. energy to focus on important crimes or problems
VII. Factors influencing discretionary decisions
A. Situational factors
1. Seriousness of the crime
2. Strength of the evidence
3. Preference of the victim
4. Relationship between victim and suspect
5. Demeanor of the suspect
6. Characteristics of the victim
B. Influence of race and gender
1. Officers may be more responsive to white victims
2. "Driving while black"
3. Perceived behavior of women
C. Police-citizen interactions
1. Officer actions need to be understood in relationship to citizen behavior;
officers' actions are influenced by citizens
2. Use of force--citizen's behavior
a. no resistance
b. slight resistance
c. moderate or high resistance
d. violent or explosive resistance
3. Important to question if officer's actions are related to citizen's behavior
4. Most police citizen interactions are routine, uneventful
5. Citizens' compliance with police requests--study
a. police officer actions:
i. leave another person or people alone
ii. calm down or cease being disorderly
iii. cease illegal behavior
b. citizens complied with requests 78% of the time
c. failure to comply increased chances of arrest (in 28%, arrest resulted)
D. The neighborhood environment
1. High crime vs. low crime areas--high crime areas have more incidents
which may require deadly force
2. High income vs. low income areas
a. more arrests in low-income areas
b. the poor and blacks are more likely to be arrested
E. Characteristics of the individual officer
1. Do not have a major influence on police behavior
2. Officer race/ethnicity has little impact on behavior
3. Gender
a. little impact on behavior
b. female officers:
i. engage in fewer actions that result in citizen complaints or disciplinary action
ii. receive half the citizen complaints of male officers
4. Education
a. little impact on behavior
b. officers with more education receive fewer complaints
F. Official departmental policy
1. Powerful influence on discretion
2. Examples of areas of impact
a. shooting policies
b. high speed pursuits
c. mandatory arrest policies for domestic violence
G. Informal organizational culture
1. Not necessarily established by written policy
2. Pertains to the values and traditions that are communicated informally
H. Local political culture influences police departments informally--not necessarily
established through written policy
VIII. The Control of discretion
A. The need for control
1. First step is to admit its presence and that it can create problems
2. Myth of full law enforcement exists because:
a. police want to maintain a public image of authority
b. it circumvents equal protection questions
c. it avoids questions about police policies
d. most state laws require full enforcement of the law
e. it allows supervisors to avoid close supervision of officer behavior
3. Myth creates problems
a. denies reality of police work
b. creates potential due process and equal protection problems
c. increases likelihood of police-community relations problems
d. makes it difficult to manage personnel effectively
e. makes meaningful planning impossible
B. Strategies for controlling discretion
1. Abolishing discretion--rejected
a. discretion is inevitable
b. discretion can be used for positive purposes
2. Enhancing professional judgment
a. represents the professional model
i. professions of medicine and law are granted broad discretion
ii. control is exercised through screening, training, etc.
b. critics argue professional model does not apply to policing
i. lower recruitment standards
ii. peer culture of policing tolerates improper behavior
iii. policing is described as a craft rather than a profession
C. Bureaucracy and the control of discretion-bureaucratic setting of the criminal
justice system limits discretion (EX: an arrest is reviewed by several actors in the system);
officer is not totally free to act out prejudices
D. Written policies guide officers' use of discretion (administrative rulemaking)
IX. Administrative rulemaking
A. Seeks to guide discretion through:
1. Written departmental rules
2. Requiring officers to complete reports on how they handled situations
B. Rules typically specify:
1. What an officer must do in certain situations
2. What he/she may not do in those situations
3. Where an officer may properly exercise discretion
C. Examples of administrative rulemaking
1. Deadly force
2. Domestic violence
3. High-speed pursuits
D. Principles of administrative rulemaking
1. Strategy: to fill the gap between law and practice
a. laws describe categories of criminal behavior in general terms
b. in practice, discretion is used to apply these terms to a specific situation
2. Objectives
a. confine discretion-"fixing \ the boundaries"
b. structure discretion-rational system for developing policies
c. check discretion-decisions are reviewed by another person
E. The advantages of written rules
1. Provide direction to officers on how to handle critical incidents
2. Promote consistent performance throughout the department
(EX: Standard Operating Procedure (SOP))
3. Help ensure equal protection of the law
4. Provide the basis for effective supervision
5. Are more effective than other means
a. abolishing discretion is not realistic
b. allowing unlimited discretion opens the door to potential abuse
c. rules written by outsiders are less likely to be followed
F. The impact of administrative rulemaking are significant improvements in policing
1. Reduction in deadly force incidents
2. Reduction in number of high speed pursuits
G. Ensuring compliance with rules
1. Major issue: Do officers comply with departmental policies?
2. Ensuring compliance
a. require officers to file written reports after each incident
b. each report is reviewed by supervisors
3. Immediate work setting
a. high publicity events put pressure on officers to comply
(EX: firearms discharges, high-speed pursuits)
b. always the chance that a citizen will report the incident
H. Codifying rules: the standard operating procedure (SOP) manual
1. Limits of SOPs
a. traditionally
i. overemphasize trivial issues (uniforms)
ii. ignore critical issues (deadly force)
b. new policies typically adopted in response to an immediate crisis
i. lawsuit
ii. community protest
c. SOPs are generally unsystematic
I. Systematic rulemaking
1. Systematic approach
a. allows police to anticipate problems before they become crises
b. represents a professional approach to planning
2. Attempts to encourage systematic rulemaking
a. accreditation
i. requires departments to have written directives
ii. but accreditation is voluntary
b. each state creates an administrative council on law enforcement which
would develop policies for all local departments
c. state laws require departments to have rules on critical decision points
(EX: deadly force is covered by state statute)
d. citizen oversight and policymaking
i. policy review--individual complaints analyzed to determine effect of policies
ii. recommendations for new policy may be sent to department
J. The limits of administrative rulemaking
1. Impossible to write rules that cover every situation
2. Formal rules may encourage evasion or lying
(EX: exclusionary rule)
3. Rules may create more uncertainty for officers
4. Rules may create a negative atmosphere in the department; officers may feel
rules are there to "get" them
X. Conclusion
|
2002 McGraw-Hill Higher Education