Policing: Police and Attorney Uses Discretion Essay

Police Discretion One of the most controversial distinctions of police authority is their discretion over individual rights. Our nation’s concept and respect for individual rights stems from our forefathers and the creation of the Constitution. Being a country with grassroots in freedom and revolution, our outlook towards individual rights and liberty remain strong. Therefore much emphasis is placed on the Constitution as the rule of law and its interpretation of individual rights affects the way police organizations conduct themselves. Three styles of police behavior in America have been identified: 1) legalistic style of policing; 2) atchman style of policing; and 3) service style of policing. The legalistic style of police behavior is concerned with those police officers who believe they are representatives of the law that they are sworn to uphold. Legalistic police officers refrain from judgment on the basis of the spirit of the law, trying to judge only whether a law is broken or followed. The legalistic style of policing could be equated with the “police officer who would give his own mother a ticket for speeding’ philosophy. The watchman style of policing produces the opposite type of police fficer. The watchman police style “overlooks” or ignores many violations of the law. These police officers, when not acting on a violation, are inclined to issue more warnings than tickets, and make fewer arrests. The service style of policing makes the greatest use of discretion. These police officers judge each situation on its own merits and base their decision to arrest on the well-being of the community. The service style of policing is a balance between the legalistic and the watchman styles of policing and has been suggested as providing one of the better forms f police-community relations. Police discretion has been defined as “the power to consider all circumstances and then determine whether any legal action is to be taken. Many citizens as well as police officers feel police should not have the authority of discretion. These individuals feel it should be left to the court’s discretion whether to inflict punishment upon a lawbreaker or ultimately to decide whether an offense has been committed. The conception of police officers as non judges is a misnomer. Police officers must utilize judgment daily in their job performance.

Police discretion is used as an arrest or not-to-arrest judgment in the same manner a prosecuting attorney uses discretion in the plea-bargaining process. However, the prosecuting attorney and the judge usually do not have the power of discretion until the police officer makes the decision to arrest. Police officers exercise a tremendous amount of discretion in carrying out their functions. Police encounter a wide range of behaviors and a variety of situations that the law hasn’t even thought about yet. One of the most amazing things about policing is not who they arrest, but who and ow many they let go (non-arrest options, leniency, under reaction). On the other hand, police work is dangerous, and officers sometimes view non-dangerous situations as more dangerous than they really are (overzealous, brutality, deadly force, overreaction). That is, they make many choices from a range of possible actions or inactions available to them that are not specifically prescribed by law. This simple notion that seems self-evident to some and controversial to others, lies at the heart of many issues of policing in democratic societies. That police do exercise discretion was only openly acknowledged beginning in the 1960s.

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The conventional views prior to that time, and persisting among some long thereafter, was that the police function was entirely a ministerial one, that police took only those actions specifically authorized or mandated by legislative bodies. Under this view, policing was understood to be simply a matter of enforcing the laws on the books. But a number of research studies of policing in action found that the law was silent on many important matters involving police action, and ambiguous on others; also, police officers did not always adhere to what the law prescribed, even here the law was clear and specific. The exercise of discretion is nearly inevitable in policing. Some laws are practically unenforceable- some are outdated and widely unpopular, some are unconstitutional, and some lack enforceable sanctions. Legislatures pass laws, and fail to abolish others, for a variety of purposes, only one of which is to establish clear expectations and guidelines for police action. Moreover, police seek to achieve various objectives in carrying out their duties, and, at times, those objectives conflict with one another. In such instances, police ust decide which objectives take precedence over others. For example, during a public demonstration held in the streets, police may find that the objective of keeping traffic avenues clear conflicts with the objective of safeguarding citizens’ rights to peaceful protest. Even absent conflicting objectives, police and other criminal justice resources are far too limited to allow police to enforce all laws aggressively. Most communities would not tolerate full enforcement of the law, even if resources would allow it, preferring a degree of police tolerance, especially for minor legal transgressions.

The very capacity of the criminal justice system to continue functioning in many communities depends to a great extent on the police not fully enforcing the law. Sudden increases in police arrest activity can seriously challenge the capacity of the system to process the resultant cases. Discretion is exercised in policing at all levels of the police hierarchy. In contrast with other occupations and professions, the greatest amount of discretion in policing is exercised at the line level by patrol officers and detectives, but supervisors and policymakers also exercise large mounts of discretion. Mythical aspects The mythical aspects of Police Discretion come about when police agencies are questioned about whether their officers practice full enforcement on a consistent basis. Police are often questioned about whether or not they followed policy in certain situations. The myth comes about due to the fact that although society believes officers follow all policies and that full enforcement is always used, this simply is not true in all cases. This is when discretion comes into play. Society can see through the myth of full police enforcement when incidences like raffic citations vs. traffic tickets are given. Discretion is used during traffic stops many times due to factors involved with the traffic stop. If full enforcement was always used, there would never be citations issued, there would only be tickets issued. Three reasons as to why this myth has come about are: “legality, the nature of the police organization and the authoritative image of the police”, (Walker, 1999). The legality aspect deals with an officer’s power to make arrests. From a legal perspective, “police officers are governed by statue(s) requiring them to make arrests. (Dantzker, 2003) If we believe that an officer’s job is to enforce the law, if an officer disregards these laws, or uses discretion, it becomes a question of whether or not laws are followed through properly. The nature of the police organization is simply stating that police agencies would lose a sense of secrecy about what they do if they admit to discretion. If an agency admits to using discretion they are ultimately giving up some control to the outside. When we talk about the authoritative image of the police we are pointing out the edge that an officer has with the public. The image an fficer portrays is that of authority and if discretion is pointed out an officer may feel as though their image could be affected. TYPES OF DISCRETIONARY DECISIONS MADE BY POLICE Perhaps the most profound types of discretionary decisions made in policing are the decisions to use force and to arrest. Police make many other types of discretionary decisions, including decisions about which laws to invoke when an arrest or other form of detention is made; whether to refer matters to other agencies; what tactics to adopt in mounting proactive operations; what conduct to investigate, what investigative techniques to apply, and how intrusive those echniques are; what level of resources to commit to various activities, places, and problems; whether to secure prior authorization for certain actions (e. g. , whether to apply for search warrants or other court orders); what level of urgency to give to various duties; whether to authorize others for certain activities (e. g. , where police are responsible for issuing certain licenses and permits); and so forth. GUIDING AND CONTROLLING POLICE DISCRETION Although police discretion may be inevitable, it is widely accepted that it should not be unfettered, that it needs to be guided and controlled.

Statutes and local laws can and do guide police discretion to a certain degree. Some legislatures have sought to restrict police discretion in certain types of cases, notably in the realm of domestic violence through laws mandating arrest of offenders. Court rulings, and the possibility of holding police officials civilly liable for their discretionary judgments, also influence the exercise of police discretion at the margins. But by themselves, laws are inadequate for guiding and controlling police discretion. Written policies and procedures are increasingly used by police agencies to set out the parameters of officers’ iscretion in certain types of cases, and to provide contextual guidance for the proper exercise of it. Police accreditation standards, although not typically dictating the substance of most discretionary judgments, can help create an organizational structure that supports administrative rule making. Police training programs are essential for improving officers’ decision-making skills in the application of policies and procedures. The development of a body of knowledge, grounded in research and practice, about how police can address public safety problems effectively and fairly also holds promise for shaping important discretionary decisions.

Many police agencies are increasingly looking to citizens to provide them with guidance on a range of discretionary matters, from what public safety problems to focus on to what means to use in addressing them. Citizen input can be provided at the policy-making level as well as through systematic input to line officers. How police officers exercise their discretion also turns on the informal norms of each policy agency-norms that are shaped by community values, police leaders, supervisors, and peer officers. “The way things are done around here” is not exclusively matter of what the rules say. Building useful theories of discretion control can draw on a wide range of disciplines and from the literature on police reform. The process might begin by considering who attempts to influence police discretion and then inventorying the mechanisms of influence available. One cannot assume that there is a singular, hierarchically determined leadership that sets goals but that there may be many groups of players with influence. One must allow for the possibility of “organized anarchy,” where the distribution of power is in flux or no dominant coalition merges, creating ambiguity for street-level decision makers. Formal organizations establish structures, incentives and sanctions, supervision, and so on, to coordinate and control its members. Police organizations find control of this sort highly problematic because the organizations are limited in their capacity to manipulate what employees really care about and the systems of control are cumbersome, conflicting, and loose. Veterans tell rookies to forget what they learned in the academy. The result is a system that tries to control undesirable behaviors rather than promote desired ones.

To promote desired behaviors, it has become popular to promote control through legitimacy rather than raw power in a transformational approach where the officer’s compliance results from a personal transformation instead of compliance in exchange for something of value. Another organizational element to consider is the police culture. Culture should be looked at as an independent variable over time and place to see its impact on officer discretion. Efforts within the organization to exert control over police discretion do not occur in isolation from larger environmental influences such as the eighborhood, the city, the actions of local police officials, the appellate rulings, and so on. Researchers need to investigate things like the following: What sorts of control systems are most effective in a crisis, and how long are they effective after the critical event? ; How do appellate court rulings affect daily practices of patrol officers? THE CONTRARY VIEW There remain principled arguments against acknowledging and sanctioning police discretion. Some see discretionary application of the law as inherently discriminatory and as a violation of the principle of equal treatment under the law.

Indeed, the phrase “professional discretion” is sometimes used in policing to refer to the practice of not enforcing the law against fellow police officers. Others object from a balance of government powers perspective, believing that all significant rule making is best left to legislative bodies and not to executive bodies like the police. In a general sense, when the police take a legalistic approach to the control of crime and enforcement of the law, crime rates will rise because of increased arrests. When the police take a watchman approach to law enforcement, crime rates may decline because of decreased arrests.

When the police take a service approach to law enforcement there may be less arrests, but the conviction rates should be higher and the types of crimes solved more serious in nature. The public is not inclined to report crime or cooperate with the police when they feel that the police are incompetent or more concerned with writing tickets than investigating crimes. When the police make visible efforts to cooperate with the public by using a service style of policing, the public becomes more cooperative. As a result, wise use of police discretion can enhance the olice image and provide for better police-community relations. The police officer’s decision to arrest is the first step in the criminal justice process and is, perhaps, one of the most important steps. How the police officer utilizes his or her discretionary powers will affect the community view of the police and, to a large extent, the crime rates of the community. Examples of discretionary exercises of power: The following situations are ones that officers are faced with on a daily basis. Their use of discretion determines the outcome of these situations, where the exercise of discretion could be egal or amounting to an abuse of power. • Domestic Disturbances: An example is an officer making a discretion decision to allow the abuser to stay in the house because the officer may feel as though both parties are equally responsible and no action should be taken. Here the discretion may be an abuse of power, since the abuser, in strict sense, ought not to have been allowed to stay in the house. • Public intoxication: in most of these situations discretion would be applied by an officer. He/she can choose to act or not act. • Disorderly conduct: discretion could be used in these types of situations due to each ndividual’s perspective as to what is disorderly. An example could be a group of college kids who have their music playing loudly in their own backyard. A neighbor may think this is disorderly even though there is no other commotion going on besides the music. • Trespassing: the laws of trespassing are fairly straightforward. If someone has been told not to go into a certain area, then an officer should follow through with the law and punishment for this action. • Use of force: this is a situation in which the officer could abuse his/her powers. A perfect example of this could be the Rodney King video.

Although there was more to that video than we were able to see, the fact that the officers felt as though they could beat an individual to the extent that they did Mr. King was definitely a misuse of discretion. • Traffic stops: this is an area where officers can use a vast amount of discretion. There are so many different reasons for individuals to be driving a certain way, or for having an issue with their vehicles. • Contact with female vs. male individuals-here the male officer, in control of a female subject may exceed the legal limits of his powers, and vice versa. Contact with minorities-here also, there could be either an abuse or a lenient approach, depending on the race of the officer. References http://www. apsu. edu/oconnort/4000/4000lect07. htm http://www. realjustice. org/library/au05_bargen. html http://unjobs. org/tags/police-discretion Dantzker, M. (2003). Understanding today’s police. 3rd ed. : Prentice-Hall Inc. Davis, K. C. (1969) Discretionary Justice. Westport, CT: Greenwood Press. Hirschel, J. , I. Hutchis, C. Dean & A. Mills. (1992). Review Essay on the Law Enforcement Response to Spouse Abuse: Past, Present & Future. Justice Quarterly 9(2): 247-83.

Kadish, M. & S. Kadish. (1973). Discretion to Disobey: A Study of Lawful Departures from Legal Rules. Stanford: Univ. Kelling, G. (1999). Broken windows and police discretion. Retrieved from www. ncjrs. org/pdffiles1/nij/178259. pdf Kleinig, J. (Ed. ) (1996. ) Handled with Discretion: Ethical Issues in Police Decision Making. Lanham, MD: Rowman & Littlefield. LaFave, W. (1965). Arrest: The Decision to Take a Suspect into Custody. Boston: Little Brown. Walker, S. (2004). Retrieved Mar. 18, 2005, from Police Discretion Web site: http://faculty. ncwc. edu/toconnor/205/205lect09. htm.