The Abuse of Police Discretion in Law Enforcement

Abstract

The use of discretion in law enforcement is when the officer is given the latitude or freedom to decide what direction they chose to take when interacting with the public, they choose if a traffic stop will take place or if a person should be detained or arrested as well as any other steps need to be taken or not. Police officers’ duties are dictated by policy and these rules specify their duties and obligations, but discretion allows them freedom of action (Buvik, 2016). Due to vague laws and varying policy over police discretion, some officers may exercise too much discretion or not enough and, in some cases, it led to instances of excessive force with deadly outcomes. Agencies across the country have created policies that define how and what level of force police are allowed to use when faced with certain situations, the goal is to apply the least lethal method possible. The use of discretion comes into play as part of the daily operations for a police officer and the decisions they make can have a wide variety of impact on their job, the criminal justice system and the way the public perceives police officers. If a law enforcement officer chose to issue a citation or make an arrest for every issue that they confronted there simply would not be manpower in the criminal justice system to handle the workload, there would be a shortage of police officers, courts, jails, prisons or services (Noble, 2013). The goal of police discretion is to provide the officer latitude in handling interactions with their public and allowing them to assess and handle each situation as the officer see fit, sometimes it is felt that by giving a warning to an individual will go further to change an individual’s behavior then issuing a citation.

There are internal and external controls that influence how law enforcement uses discretion when they interact with the public and enforce laws. Internal controls are rules or guidelines that are established and enforced at the agency level such as the broken windows policy where officers where directed to focus on minor offenses with the hope of preventing major offenses. External controls are set at the legislative level of the government and can be local, state or federal controls, examples of this include mandatory arrests and court appearances for specific crimes.

In addition to minimizing police misconduct, restrictions on discretion have been proposed as a way to minimize the potential effects of officer bias on police behavior (Nowacki, 2015). Policy for police discretion must be composed in such a manner that encompasses a large variety of public interactions from simple traffic violations to drunk and disorderly, domestic violence and even instances of dealing with those in society who suffer from a mental illness. There could be more than one reason that there has been an increase in contact with people experiencing mental illness and the criminal justice system, but as suggested by Godfredson, Ogloff, Thomas, & Luebbers is that it could be in part due to deinstitutionalization because it has provided more opportunities for people who otherwise would have been institutionalized to come into contact with the police. (2010). This increased interaction has also identified an area for improvement needed in police training because police are highly trained in matters of dealing with criminal activity, those who chose the life of crime are aware of their actions and consequences whereas someone suffering from a mental illness may not fully understand. It is important for law enforcement agencies to recognize the need for policy guidance and proper training for their police officers, luckily mental health legislation in most jurisdictions outlines the responsibility of the police regarding the protection of people who are a threat to themselves or others (Godfredson, et. 2010).

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Historically the approach to police officers training has been viewed as on the job experiences provides the best path to becoming a fully qualified police officer and that the skills are developed by handling the various situational aspects of policing over time (Terrill & Paoline, 2007).  The Reform era of policing had a span from the 1930s up until the 1970s and can be characterized by a trend toward professionalism and government control of the police (Ortmeier, 2005). The push for professionalism also leveraged the need or desire to have police officers obtain higher education and receive degrees with the goal of building a better police force. At the beginning of the reform era, the belief that college-educated officers performed better when compared to non-college educated officers was more of an assumption rather than being based on factual evidence. Studies have been conducted over the years in an attempt to show a correlation between having a higher education or not and comparing different studies has provided mixed results, however, the overall results of these studies tend to suggest that there are noticeable differences, and potentially positive policing attributes, associated with college education (Terrill & Paoline, 2007). In the case with any study conducted there will inevitably be a counter-argument and those who argue against it or claim that experience is more important. It is true that experience will give an officer a level of knowledge that classroom training cannot provide, however on the job training also risks officers being trained improperly by their senior officers because veteran officers were trained in a different time and the culture was different and continuing to change.

Cameras have become a normal part of society and as they improve in technology and the cost of installing them becomes more affordable they are becoming more and more frequently used, they can be used for security, traffic or even weather. Audio and visual recording capabilities have played a part in law enforcement for many years as well, from interrogation rooms to dash-mounted cameras in the police car. The use of cameras for law enforcement enables them to record their interactions with the public and can be used to reference later if a question should arise, it helps law enforcement to tell the entire story of how an event played out. Recently the use of body-worn cameras on police officers has gained traction because of the increasing numbers of officer-involved shootings (Taylor, 2016). The idea of police discretion and their latitude in decision-making has been an unending topic of discussion within law enforcement and the public. It has been stated every level of police work, especially at the micro-level, involves choice on part of the police officer (Taylor, 2016). It is thought by those who are in favor of the use of body cameras and changing policy to require their use will change the behavior of the officer and reduce instances of poor police discretion and excessive force. In fact, there has been an increase of police departments globally that are attempting to do that by equipping police officers with body-worn cameras in order to potentially de-escalate volatile encounters through the deterrent threat of apprehension for noncompliant behavior (Ariel, Sutherland, Henstock, Young, Drover, Sykes, & Henderson, 2016).

Public perception of law enforcement, in general, is pretty favorable, society, for the most part, accept that police have a tough job to perform day in and day out. In fact, according to a survey conducted by the CATO Institute, 68% of white Americans have a favorable view of the police, only 40% of African Americans and 59% of Hispanics have a favorable view (Ekins, 2016). Police officers are given the latitude of discretion when issuing a citation for a traffic violation or request to search a person or their vehicle if they have reasonable suspicion that a crime had taken place or could take place it is understandable that there will be those in society have issue with such latitude and those who believe it is acceptable. Another study conducted by the CATO Institute Two-thirds 66% of Americans favor allowing police in their area to stop and search a person for weapons or drugs if that person looks suspicious or out of place, including 31% who strongly favor and 35% who somewhat favor (Ekins, 2016). Some would argue that just looking suspicious isn’t enough to warrant a search and looking suspicious can be a subjective observation, what one person sees as suspicious could be viewed as normal behavior by another.

How the general public perceives law enforcement use of discretion can be in stark contrast when compared to how the agency or city leaders view police officer's use of discretion, this could be in part due to the general public receiving their information from social media or the news. Often times these reported instances of poor discretion being used by police or abuse of power when reported by the media, several key points or facts may be omitted or missing from the report. When assessing discretionary decision-making by police officers there is a significant difference between the mistakes an officer makes and police abuse of power. Mistakes are the byproduct of an unintentional misunderstanding or just because the officer may lack training which could lead to inappropriate, unwise, or unfortunate decisions (Noble, 2013). There are criteria that should be met when officers are faced with discretionary decision making, it is these criteria that will determine if an officer made proper decisions or abused their police authority. Proper criteria would include such considerations of the seriousness of the offender’s conduct, use of a weapon, violent conduct, complaints from citizens or even the high probability that the conduct will continue if affirmative action is not taken (Noble, 2013). Improper criteria seem clearer because in most cases it violates police ethics and these could include race, gender, personal feelings or just plain laziness to avoid the paperwork that would follow. These are many items to consider that are both proper and improper decision-making criteria’s but certainly not a full list, there are too many variables that could be unique to each interaction with law enforcement.

Law enforcement is faced with tough decisions daily and faced with countless interactions with the public, the technology that has increased public awareness of interactions between the public and law enforcement. Because of this increasing awareness, it is more important for police officers to be aware of their actions and to make the most ethical decisions when using their discretionary latitude, but it is even more important than the agency they work for providing adequate training and clear policies for them to adhere to. Agencies that infuse proper training and clear policies for their officers are proving the keys to the success of their agency.

References

• Buvik, K. (2016). The hole in the doughnut: a study of police discretion in a nightlife setting. Policing & Society, 26(7), 771–788. https://doi.org/10.1080/10439463.2014.989157
• Ekins, E. E. (2016). Policing in America: Understanding Public Attitudes Toward the Police. Results from a National Survey. SSRN Electronic Journal. doi: 10.2139/ssrn.2919449
• Godfredson, J., Ogloff, J., Thomas, S., & Luebbers, S. (2010). Police Discretion and Encounters with People Experiencing Mental Illness: The Significant Factors. Criminal Justice and Behavior, 37(12), 1392–1405. https://doi.org/10.1177/0093854810383662
• Noble, J. (2013). ASSESSING POLICE DISCRETION? Journal of California Law Enforcement, 47(4), 6–10. Retrieved from http://search.proquest.com/docview/1626170416/
• Nowacki, J. (2015). Organizational-Level Police Discretion: An Application for Police Use of Lethal Force. Crime & Delinquency, 61(5), 643–668. https://doi.org/10.1177/0011128711421857
• Ortmeier, P. J. (2005) Introduction to Law Enforcement and Criminal Justice, 2nd Edition. Pearson Learning Solutions, VitalBook file.
• Paoline, E., & Terrill, W. (2007). Police Education, Experience, and the Use of Force. Criminal Justice and Behavior, 34(2), 179–196. https://doi.org/10.1177/0093854806290239
• Taylor, E. (2016). Lights, Camera, Redaction... Police Body-Worn Cameras: Autonomy, Discretion and Accountability. Surveillance & Society, 14(1), 128–132. https://doi.org/10.24908/ss.v14i1.6285