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The exercise of discretion is not the problem, it is the abuse of this power that presents an ethical challenge. The researchers Skolnick and Fyfe (1993) came to the conclusion that police are often tempted to use more force then is nessessary in confrontational situations. Hallenstein (1995) remarked that operational objectives are often put ahead of safety concerns, whether that be physical or mental harm to the victim. McGrath (1991) found that 10% of police pursuits resulted in a fatality. Having more police to lower the crime rate has been found to be inconclusive according to studies done by Kelling (1974) and Clarke (1984). According to Sherman (1997) a tougher approach to crime is sometimes effective but can lead to greater defiance by angry offenders and the jury is still out on community policing as a means of curbing crime says Putt (2011).
There are other views on the desirability of police discretion where it is seen as a flexible and more open minded approach to offences and brings more insight into decision making then just using the letter of the law alone. Theorists such as Kinsey and Young (1982) use this rationale. On the other hand, opponents of unchecked police behaviour say it allows police to redefine justice in terms of their own priorities. Goldsmith (1990) expresses concern that there is potential for arbitrary and discriminatory application of the law when discretion is relied upon too much as a decision making tool.
A good example of discretionary powers used by Victorian police in the past relates to gang violence.For example, assaults on Indian nationals in the metropolitan areas of Melbourne (year). Victorian police hierarchy choose not to divulge that the majority of assaults were perpetrated by mainly ethnic gangs (as reported on the now defunct MTR radio station of Melbourne).Citing that in certain suburbs of Melbourne there is a concentration of young immigrants migrating from war-torn nations trying to adjust to the Australian lifestyle and the countries laws. Vic police decided not to focus the attention of these assaults toward any particular group fearing alienation of the youths and instead generalized the assault as a "gang of youths".
In the situation of domestic violence, police constantly make judgement calls whether to take action or deal with the situation at hand and leave the scene. For example, on a recent ABC Four Corners programme, a woman who had an intervention order on her ex boyfriend, was found murdered after reporting to the police that the intervention order had been broken multiple times, fearing for her life she was found murdered shortly after.
The law doesn't cover every situation that police officers encounter in the field. Even though the law may be clear, it may be more prudent to ignore the strict letter of the law. To give an example, a disagreement between two neighbours that has escalated to the threat of physical violence. In the situation where a constant dispute in regards to noise pollution, police can use their instincts to decide whether to resolve the problem without action or give official warnings. To give official warnings, there will be a need for evidence eg. mobile phone recording or audio visual evidence.
Assessing instead of intervening in a certain situation as per the last example, discretion is used in domestic disputes and assists police to assess whether or not to intervene. In addition police may attempt counsel both parties to attempt to reach an amicable outcome to the dispute.Making a decision on whether to arrest a person with the possibility of the said person receiving a criminal record for a minor offence, in addition to clogging the court system with petty matters borderline criminal behaviour, noting that the judgement or non judgment of a minor offence eg. possession of a small amount of drugs for personal use, may affect the future possibilities of the person in addition to the police use of discretion in the future, assisting to mitigate the effect of bad law.
The Waterfront Dispute between the Maritime Union of Australia against Patricks, is a good example of police avoiding confrontation. The protection of life, property and the maintenance of order, factor into the decisions of the police force. For example, instead of a blanket blitz on car theft and focusing across the whole state of Victoria, the police and police management, will use their discretion to focus on certain areas, target types of cars, age groups and generally use their gut feelings when a certain point of law is being investigated.
The effect of unjust law on a perceived perpetrator could be devastating to their future and well being. Discretion can be used to mitigate the effect of this unjust law and let the person off with a verbal warning.Laws are usually written quite narrowly, knowing when to apply them and to use their judgment to prioritise resources to focus on the more extreme or serious situations and the need to assess the context of each and every situation.
Police work can be and is dangerous at times. Police can view some situations that are not dangerous as dangerous and overreact with fatal consequences. Overzealous, brutal, deadly force and overreaction can be a negative side of discretionary powers. External influences in police decision making may have a negative effect on the confidence of the police and the public in general.
For example, perceived rightly or wrongly, political interference in regards to union disputes, citing the Grocon dispute currently in the headlines. Political pressure from the Ballieu Government, may be a factor in the use of force towards the CMFEU. It is possible that the police force might use their discretion to keep most rallies peaceful as they did with the Maritime strike. Political pressure may have been a major factor of the rallies or strike action turning violent instead of remaining civil or verbal.
Lack of uniformity in arrests can be perceived as discretionary bias whereas one person from a certain socio-economic background, may be arrested and prosecuted for a minor infraction, another person may be let off with verbal warnings for the exact same crime.Human nature in decision making can contribute to a lack of uniformity in discretionary decisions. Possible unethical decisions which can be difficult to monitor due to most civilians not bothering to report unethical behaviour in regards to the police for they expect the police to take care of their own and or they end up fighting them in court to no avail.
Discrimination comes in all forms. Ethnic minorities, groups of youths, dress code, long hair, tattoos, driving a certain vehicle, are some points of discrimination. Under policing, domestic violence, drunken youths, gang related violence and violence in sport. Sometimes there are decisions made in these situations that are deemed not enough intervention on the polices' behalf where violence may have been prevented.
Zero tolerance can be detrimental to people's future opportunities. Being arrested and prosecuted for a minor infraction and suffering a long custodial sentence. A fatal shooting of a young man with a mental illness at a shopping centre, has a negative effect on the public in general. The young man was shot dead by police after moving towards them in a threatening manner, with a knife held in his hand. Granted that having a person threatening to kill you with a knife is a serious situation, it may have been possible to use another type of weapon (stun gun) to subdue the boy before he could harm the officer, himself or anyone else in the vicinity.
Police corruption, taking bribes not to arrest certain individuals that would usually be arrested for the crimes they've committed. Over the years, there have been a number of police that have used their discretionary powers, to benefit themselves financially. An example of this is a famous policeman from NSW by the name of Roger Rogerson, made famous in an Australian mini series called Blue Murder. Rogerson was depicted as a tough cop who cleaned up the streets, took care of the public but also ran some criminal elements for his own benefit.
Just like any area of life there are success stories and failures in the use of police discretion. The research into making policy changes has shown that any real improvements on the ground are inconclusive and that the statistics are often presented to make the Police seem more efficient and obtain a better public profile then to show actual evidence of fairness in their dealings with the community. Attempts to increase accountability are to be applauded but in reality may not address a lot of the arbitrary decisions made in day to day policing.