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The Use of Law Enforcements Discretion
Discretion is the ability to change from a previous set plan, rule, or action. It is used in many peoples work and personal life every day. In law enforcement, it allows them to add to the many tools already provided to ensure that all people receive the best possible service. Discretion is and always will be up to the person and is not a mandatory resource. This paper describes police discretion, and the various control mechanisms available i.e., internal control mechanisms control by the citizens, legislative control, and control by the courts. Many factors and characteristics are also the reasons why some police use discretion. The paper will summarize who and what contributes to the use of discretion while explaining why and when law enforcement is able to use it. Discretion is not about right or wrong, but using their discretion with honesty and without discrimination.
Discretion is a choice to find an alternative to actions, rules, regulations, laws and even procedures. Its action is necessary because, there are times when the best choice is not the one that is written in black and white. When it comes to law enforcement, the use of discretion is determined by the incident and who is involved. Discretion is a necessary tool because criminal justice personnel will come into contact with different people in different situations. Many of those times, there will be actions or a situation that they have never heard of and for this, the rules, laws, and guidelines that are written need not be followed because of factors involved. Also, there are too many of these rules, laws and guidelines to apply to the situation. Discretion cannot be taken lightly because the end result may hurt someone
In the beginning, there first has to be an understanding of discretion. Discretion is an action in which someone does not necessarily follow what was given to them. It is used by organizations every day because the right way is not always the best way. Law enforcement has the ability to use discretion constantly. It allows them to make judgment calls in almost every situation that they are involved in. Discretion is not necessarily considered acceptable or unacceptable; it is about taking factors from an incident or situation and making the best decision. Let us take a look at state police on the highway checking for speeders. The officer stopped five vehicles and gave a ticket to only one. There were many factors the officer took into consideration when deciding if and which person he stopped would get a ticket. How far over the speed limit was the person going, was the person weaving in and out of traffic, what was the cause for the speeding, or was the situation too dangerous not to go unpunished.
Discretion is a good tool for law enforcement as it allows officers to help the court system. The officer is the one in the criminal justice system who determines if people gets a ticket (traffic incidents) or are arrested (for minor offenses). This is because they are the first point of contact in most situations with the citizens that they serve. Lower level law enforcement are the ones out in the field patrolling the neighborhood, they make the traffic stops, and they are the one that communicate the most with society. Because of this, law enforcement gets to know the people. Officers also learn their habits, know about their family and at times, even know of any personal problems citizens may have. With all of this knowledge about the community in which law enforcement serves, it is best for them to have and use discretion when necessary. Everyone cannot be treated the same because all situations and problems are not the same. “Dealing with so many different individual cases, it becomes recognized that law enforcement officers could not always strictly follow all rules and regulations as stipulated by law.” (Halliday, 3)
Every day, depending on the situations, law enforcement has to use their discretion. It may be whether to pull their weapon, whether to pull the trigger on that weapon, whether to pull over someone for speeding or even whether to arrest a person. The decisions, to take such actions, take a lot of consideration on the part of law enforcement. There are also many factors to take into consideration. Not only about the community and what is going on with them but, also the officer and what type of day he may be having. Officers have bad days just like everyone else and that may be a factor in the choices they make. In the case of law enforcement pulling their weapon, the person, they are confronting, may have a weapon but is not confronting them. They would have the discretion to talk to the person into putting down the weapon or possibly using a stun gun. Discretion is about making the right decision in the right situation. Sometimes when making what is thought to be the right decision would come back and hurt the officer or even someone else in the end. In some situations, discretion is hard because it is not only about the officer but others who may be involved. In this case, the person just needed to get some mental health help and the officer was aware of that.
There are many controls mechanisms and types of police discretion. The administrative control, which is the one that comes from the department, are the rules and regulation put out by those in charge. Administrative control is also about the number of officers in the department and where they will be assigned. It involves the department putting the best people in the best officers in respective areas to serve and protect. What if law enforcement administration at one time used their discretion to place all Black law enforcement personnel in the impoverished area because that is where most of the Black’s lived, it is not necessarily a good idea. When law enforcement administration puts only one type of person in an area, they not only are stereotyping, but the fail to give the officer and the community a chance to expand their knowledge of different cultures. Administrative control is also about the use of an officer’s discretion. There may be the need for the administration to take action because discretion used by law enforcement was not used properly or was of an illegal nature. For this, disciplinary actions or extra training may be required. It is just explain to those who did wrong the proper way of doing things. If it is training, the administration and others could run through scenarios. This would put them in a more realistic situation while critiquing each step of the way. Administrative control is also when budgeting for in the department falls. If there is not enough money to hire, many officers will be affected. Officers will have to work longer hours for less money. The vehicles will not be maintained causing fewer officers on the streets. The officers on the streets also will ponder how to get the job done causing issues with safety. This type of control gives forces law enforcement to make choices they otherwise would not make or even cause them to be hurt because the job has to be done.
There is also the external control to the use of discretion by law enforcement. This includes controls by citizens, legislative controls, and the control by courts. The control by citizens pertains to the citizen review board. Here, the citizens voice their opinion about the conduct of an officer. This is a way to maintain discipline of those who serve the community and make a resolution of complaints. In order for the citizen review board to work, there must be the right people in the position and also resources to help them out. Without the necessary tools, it would most likely fail. The citizen review board cannot function alone and need constant feedback from both the community and the law enforcement administration.
“Someone will set policy for the police department so that some laws are enforced passively and others actively, the legislatures by default allow these legislative decisions to be made by the police.” (Tieger, 721) This is where the legislative control comes into play. This control is about laws and how much discretion is given to law enforcement. An example of this is when a procedure is no longer used by law enforcement because of the many serious injuries to suspects. When taking down a suspect, an officer used that particular procedure, even though the officer was well aware that the procedure was no longer to be used. He used his discretion to use that procedure because it was the only way to subdue the suspect. Even though there ae legislative controls, they are also limited because how a law is written. An example is when it comes to domestic abuse. While a law is written to explain who and when someone should be arrested in the case of domestic abuse, the discretion to follow the law comes during investigation because law enforcement has a problem with probable cause and determining the aggressor. (Gaines & Kappeler, 256) The discretion is to either arrest because of the law even if it is the wrong person or arrest no one. When using discretion, law enforcement has to be flexible and enlightened in order to determine the legally responsible party of the illegal offense. The law of the offense cannot be followed because it would be too strong and it is sometimes better not to give justice. When thinking about the action of justice, there become concerns about who the justice comes to and does not come to. With legislative control comes political influence. Just because laws are made, it does not mean that politicians have the right to influence and push them on law enforcement. Law enforcement must be protected from these actions and allowed to do their job with the best of their ability and with the knowledge and training. Political pressure will cause some to rebel which would then cause turmoil in the department.
“When arrest decisions become based upon personal judgments, there is a real potential for arbitrary and discriminatory enforcement of the law.” (Wortly, 3) A great example is when the child of law enforcement is involved in a felony offense. They know about it and does not do anything or even turn their child in. But, if it was another person’s child, even their friends, they would arrest and take that child into custody. This is unfair justice discretion. What makes their child any different than someone else? This type of discretion could possibly lead to other types of corruption which should not be allowed in law enforcement. Law enforcement is held to a higher standard than the ordinary man which means that their family should be held responsible just like the ordinary person when a serious offense has occurred.
Control by the courts is necessary as they are the highest law of the land. What the court has put out are basically guidelines to be followed. One true law or rule is when the Miranda Warning must be administered. This is necessary when questioning is to be done and is necessary just in case the information given has to be used in court. Administering the Miranda warning not only protects the officer but also the suspect. It protects the officer by allowing them to ask any question they may need for a case. It protects the suspect because they do not have to answer and could stop answering their question at any time.
While there are different mechanisms to control discretion used by law enforcement, there is also different styles that are distinguished by certain actions the officer may or may not perform. Wortley wrote of the policing styles and how it plays a role in the use of discretion. The service style is about community policing and how it does not take an arrest to solve an issue. In the watchman style, it is about keeping thing under control and in order. Law enforcement will get into it with offenders if they had to but prefer to keep it simple and allow them to settle down. There is then the legalistic style where the person goes to jail regardless of the seriousness of the offense and the offender.
Discretion is purposeful and essential when it comes to crime control. “Crime control cannot be effectively achieved through the enactment of laws unless the public supports sufficient police discretion in the enforcement of criminal laws.” (Cihan & Wells, 349) If the society and the community are not willing to help out, then law enforcement is not able to do their job. This is where they use discretion in investigation of criminal activity. There is discretion in the questions asked about the incident and who the questions will be asked to. There is discretion in what age the person should be when they are looking for suspects. As children see and remember almost everything, law enforcement knows that the articulating skill of a child is not the best so they will have to use great discretion to get the information. Law enforcement also must use discretion in what information to use because children can also be talkative at times.
“While police discretion is seen as inevitable and essential, there remains an underlying fear that its exercise may lead to arbitrary, corrupt or unethical behavior.” (Bronitt & Stenning, 319) Not using discretion properly could cause corruption in law enforcement. This action could not only hurt the department, but also the officer (s) involved. Too much discretion given to certain situations could give the impression that law enforcement is biased. This issue could cause a problem in the community which could then cause problems in the department. When the community is not happy because of the way law enforcement is performing their duties, it could cause many problems such as distrust. Another problem with possibly not using discretion comes when the administration puts only certain officers in certain areas. Let’s look at Black officers working in the most impoverished part of a town. Administration thought this would be best because they think that only Black people live in these types of area. This could cause a problem as there are many officers that may have grown up in the same area and they are just as knowledgeable about the people in the impoverished area. Using discretion not the mix the cultures within the department, in the different areas of town deprives everyone. The department, as well as the officer, does not learn about the community, businesses or people and vice versa.
Discretion is empowered to law enforcement “by the selective enforcement of the penal code.” (Wortley, 3) This action happens from the time law enforcement comes into contact with a person until the time they are allowed to leave or are arrested. When an officer uses discretion during an incident, they more or less give the sentence. Whether it is taking someone to jail, giving them a ticket or just letting to go after a conversation, it is up to the officer. Law enforcement does not do this just after talking to a person. They take into consideration many factors such as the attitude the person has, if a person has had previous run-ins with the law, or if the person is wanted. Discretion is about making the best decision for the person and law enforcement at that time. Many times when an alleged suspect has an attitude and presents that to law enforcement, law enforcement will in turn have an attitude with that person. It shows that the nicer, you are, can help you get a better decision from what is intended. When it comes to being known by law enforcement because of the times they have stopped you, law enforcement used previous incident to do it again Even though it may seem biased, many discretions used by law enforcement is necessary to stop crime. Law enforcement is out in the community constantly and knows who does the crime and what type of crime. Law enforcement, most of the time is trying to stop it before it even starts.
In conclusion, there are several explanations to discretion but it is basically a person’s choice of an alternative to rules or regulations. When it comes to law enforcement, they use discretion constantly. In the understanding of discretion it should be known that it is not mandatory to be used as well as different factors and characteristics that are involved when law enforcement uses it to give a warrant, citation or just let a person walk away. Discretion is not something that is actually written in stone. Discretion of the actions from law enforcement comes from actions, attitudes, and any other previous information as well as the people involved. It is just a way for law enforcement to make a judgment on the outcome of the issues in a community. The discretion that law enforcement uses could be beneficial to the citizens of the community as well as the department. When using discretion wisely, law enforcement and the community get to know each other. Using discretion could also cut down on the time it takes up in the court system. As long as law enforcement uses discretion properly and honestly, they cannot get into trouble for being biased. Discretion is useful and necessary because all incidents with law enforcement do not need to see the inside of the court. There are several controls mechanisms to discretion such as internal, citizens, legislative and courts. There are also several styles that are distinguished by the actions law enforcement performs. Discretion is a unique choice to give people because it could make their work place and life easier.
Alpert, G. P., Dunham, R. G., Stroshine, M., Bennett. K., & MacDonald, J. (2004). Police Officers’ decision making and discretion: Forming suspicion and making a stop. Retrieved from: https://www.ncjrs.gov/pdffiles1/nij/grants/213004.pdf.
Bronitt, S. & Stenning, P. (2011). Understanding discretion in modern policing. Retrieved from: http://www98.griffith.edu.au/dspace/bitstream/handle/10072/44249/76896_1.pdf?sequence=1.
Cihan, A.& Wells, W. (2010). Citizens’ opinions about police discretion in criminal investigations. College of Criminal Justice, Sam Houston State University, Huntsville, Texas. Retrieved from: http://search.proquest.com.ezproxy2.apus.edu/docview/868913488/fulltextPDF?accountid=8289.
Gaines, L. K. & Kappeler, V. E. (2011). Policing in America (7th ed.). Waltham, MA
Anderson Publishing, Elsevier, Inc.
Tieger, J. H. (n. d.). Police discretion and discriminatory enforcement. Retrieved from: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2345&context=dlj.
Wortley, R. (2003). Measuring police attitudes towards discretion. Criminal Justice and Behavior, 30,538-558. Retrieved from: http://cjb.sagepub.com.ezproxy2.apus.edu/content/30/5/538.full.pdf+ht.
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