There's a difference between the ministration and administration of justice. Nobody (except mechanical jurisprudence theorists) wants a ministerial agency of justice, one that would ritually and religiously follow every rule and regulation down to the letter in a mechanistic, repetitive, assembly-line manner. Instead, we need responsible administers -- officials who show "good judgment" and exercise discretion by assessing the context of each and every situation. By definition, discretion is the making of choices among a number of possible courses of action (Davis 1969). This is a modified definition of what Kenneth Culp Davis actually said was "free to make choices".
Discretion, uncertainty, and inefficiency are rampant and essential in criminal justice. Nobody expects perfection. That would neither be good nor fair. Justice is a sporting event in which playing fair is more important than winning. Law enactment, enforcement, and administration all involve trading off the possibility of perfect outcomes for security against the worst outcomes. Policing is the most visible part of this; employees on the bottom have more discretion than employees on the top; it's a symbolic bureaucracy (Manning 1977).
The law simply does NOT cover every situation that a police officer encounters in the field. In cases where the law may be clear, it might be more prudent for the officer to ignore strict letter-of-the-law interpretations. Laws are passed in a vacuum, and usually written quite narrowly. 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 how many they let go (nonarrest options, leniency, underreaction). 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). In real life, it's more than what a soap opera or TV show could do credit to; it's a tragicomedy.
Police discretion was a taboo topic up until 1956 when an American Bar Foundation study "discovered" it. Prior to then, nobody would admit it existed. The attitude of police administrators was that any deviation from accepted procedures was extralegal and probably a source of corruption. When it was finally exposed, people like the American Friends Service Committee (1971) called for its abolishment, and police administrators sought a clampdown on discretion (administrative rulemaking). It's now recognized as a necessary evil or something that can be put to good use if structured properly. The exercise of discretion is not the problem: the abuse of discretion is. Community policing is about giving officers more discretion to better serve the needs of the community. Whether a police department has a legalistic, watchman, or service style is a matter of how discretion is controlled and structured.
Philosophers such as Ronald Dworkin and H.L.A. Hart have referred to discretion as "the hole in the doughnut" (doughnut theory of discretion) and "where the law runs out" (natural law theory). In this perspective, discretion is the empty area in the middle of a ring consisting of policies and procedures. And remember Davis' definition -- the making of choices from among a number of alternatives? The freedom of being able to make choices is called a strong sense of discretion by Dworkin. In the weaker sense, we would consider cases in which not only the rules don't apply, but the officer makes individualized judgments. In both senses, it's the problem of loose definition. The following analysis of terms may be helpful:
discretion-as-judgment -- Discretion is the opposite of routine and habitual obedience. It brings knowledge, skill, and insight to bear in unpredictable ways. Police are not soldiers who must blindly follows orders (Theirs is not to reason why/Theirs is but to do or die). Police must be more than competent at applying the rules; they must adapt those rules to local circumstances in a rule-bound way.
discretion-as-choice -- Discretion is not just a matter of realizing when you're in the hole of the doughnut, or a "grey area". It involves making personal contributions, judgment calls, exercising autonomy, and individual solutions. It's about the courage to make your own decisions, to have personal input, following your conscience, even if those decisions are reversed later by a superior.
discretion-as-discernment -- Discretion is not just about making "safe" choices, or being "soft". It's about making good, virtuous choices by habit or the wisdom that comes from age (The better part of valor is discretion). Prudence, foresight, the ability to size up people, arguments, and situations. Tactfulness, tolerance, empathy, and being discreet are all forms of discernment.
discretion-as-liberty -- Discretion is not where the law ends, nor is it the same as intellectually deriving principles from rules. It's about permission to act as a free and equal agent, and using that permission in extending the rights and duties of office (under color of law) toward a vision of liberty, inalienable rights, and the kinds of things that no majority, rule, or principle can ever take away.
discretion-as-license -- Discretion is the opposite of standard expectations. It's the privilege to go against the rules, disobey your superiors, be less than optimal or perfect all the time, all without degenerating the rules or eroding the trust between you, your superiors, or the public. License (not licentiousness) involves a sense of accountability that does not have to be formally recognized or structural.
Discretion is not doing as you please. Discretion is bounded by norms (professional norms, community norms, legal norms, moral norms). The future of policing as a profession depends upon whether discretion can be put to good use. Two problems impeding police professionalization, however, in that there are few uncontroversial areas of police work, unlike other professions, AND the public seems unwilling to trust informally in the accountability of police officers; they seem to want strict, formal accountability mechanisms. Sometimes the public wants nonenforcement, and other times they want strict enforcement. Citizens will scream false arrest in the first case, and some groups may file a writ of mandamus in the second case (a writ of mandamus is a court order to get a public official to perform their duty).
CAUSES OF DISCRETION
The textbook (Policing in America by Gaines, Kappeler & Vaughn) breaks down the vast amount of research into the causes of discretion. Decision elements are grouped into three (3) categories and summarized below:
Offender variables -- Police take adult complaints more seriously than those made by juveniles. Arrest and force is more likely to be used against African Americans. Citizens who show deference (good demeanor) toward police are treated more leniently. People in middle to upper income brackets receive more and better service from police. Gender and mental health status affect how police handle many incidents. Police sympathize with and only lecture some offenders.
Situation variables -- Police give serious (crime) matters more attention than minor (noncrime) matters. The presence of weapons or acts of resistance often result in police overreaction. The type of property involved in a property crime determines police response and investigatory effort. Activities initiated by police are followed up more than activities initiated by citizen complaint. Visibility of vice is a major factor in vice enforcement (the three Cs of Vice: Complaints, Commercial, and Conspicuous). Police tend to become much more bureaucratic when witnesses, an audience, or the media are present.
System variables -- Police tend to become lenient when the court and correctional systems are clogged. Police tend to become strict when the city needs revenue. Size and structure of the department controls individual discretion. Communities that have sufficient social service resources, like detox and mental health facilities, allow officers to use more nonarrest options. The way in which officers are summoned plays a role in how they will act when they get there.
LaFave (1965) and Davis (1969) list the following reasons for nonarrest:
Police believe the legislature did not desire full enforcement. Instead, they believed the politicians were making symbolic statements, expressing an ideal, or appearing to be tough on crime. Some (community standard) statutes are full of ambiguity, and some old statutes need to be taken off the books. Other laws may carry penalties that the police think are too severe.
Police believe the community wants lenient or lax enforcement. The crime is common within a subcultural group, victims do not file complaints, witnesses refuse to testify, victim and offender are related, the victim is involved in misconduct, and the victim is more likely to get restitution without arrest. An arrest may cause loss of valuable public support or unduly harm someone's status in the community.
Police believe other duties are more urgent or important. The officer goes off duty in ten minutes, the department has stopped subsidizing officers for court appearances, there's inadequate manpower for backup, and the police trade nonenforcement for other favors, deals, or to gain informants.
AREAS OF DISCRETION
Domestic Violence -- This has been one area where police have been more than willing to ask social workers, social scientists, and academicians for help. Instead of just locking up husbands who beat their wives, the police have always appeared more interested in doing nothing, and more recently, experimenting with alternatives such as mediation, counseling, cooling-off periods, social service referrals. Hirschel et al. (1992) found four (4) reasons for police inaction with this crime:
Domestic violence was seen as a private matter
Female victims were often uncooperative
Arrest of the breadwinner would hurt the family
Male officers would side with the male assailant
In 1984, results of the Minneapolis Domestic Violence Experiment were released (Sherman & Berk 1984), and it was the first study showing that arrest worked (for anything). Over a period of 18 months, officers randomly selected one of three options (arrest, mediation, or cooling-off) to use on domestic violence calls. Interviews were then conducted with the victims six months later to see if any additional abuse occurred. Arrest alone produced a deterrent effect as those non arrested were twice as likely to reoffend. Consider what else is known from replications of this study:
Arrest increases violence among people who have nothing to lose, like the unemployed.
Arrest deters violence in cities with higher proportions of whites and hispanics
Arrest deters violence in the short run, but escalates violence later in cities with higher proportions of blacks
A small (chronic) portion of violent couples are responsible for the majority of calls
Offenders who flee before the police arrive are deterred by arrest warrants
Drunk Driving -- Although we are accustomed now to toughness with this crime, toughness was not always the case historically. There have been some studies showing three kinds of officers who DO make DUI arrests: (1) rate busters; (2) moralists, or drunk-haters; and (3) bounty hunters, who wish to collect the overtime pay. The following are reasons why the police would NOT make DUI arrests:
Laziness -- to avoid work, visibility, court dates, paperwork, overtime
Opinion that DUI is not serious -- a low priority, something they've done themselves
Lack of faith in utility of arrest -- no point in it; better to follow the person home or have someone else drive
Hate Crime -- We are currently in a societal phase where the primary law enforcement action regarding hate crime is documentation. The principle behind hate crime legislation is that even the most minor offense undercuts the very heart of a community, but police have widespread discretion in deciding which acts, which individuals, and which groups in the community are minor nuisances or community threats. In addition, the police are accustomed to protecting every group's rights, regardless of belief or ideology.
Mental Illness -- For the most part, homelessness, alcohol and drug abuse, and mental illness are intermingled. Some 8-11% of police calls for service involve the mentally ill, and an unknown additional amount involves malingering by poor people who do not have access to private care so they call the police to forcibly obtain care for family members. Calls about panhandlers can constitute as much as 25-35% of all calls. If facilities are not available, the police generally allow the homeless to stay on the street, or they forcibly relocate them. The following are problems associated with this:
Conflict over the proper uses of available public facilities
Public demand for actions that are only marginally criminal
Use of Force -- Along with high-speed pursuits, use of force is an area where there has been recent administrative control and structuring of discretion. The amount of force to be used by police officers is usually described in police manuals as no greater than necessary and reasonable in a given situation. Unquestionably, the use of force must be controlled and confined to protect the department from civil liability, but the following factors are also worthy of consideration:
Police officers' rights to protect themselves
Precedent set by the past behavior of police officers
Need to build security access for future police officers
Vice Crime -- Vice is crime against the public order or morality (e.g., prostitution, nude dancing, gambling, pornography, illegal sale of alcohol, narcotics). Such crimes are also "victimless" in the sense that participants are involved consensually and willingly. There are a number of reasons why vice enforcement is uneven, sporadic, and ineffective:
The laws are almost unenforceable. Investigation leading to conviction requires Complaints, and the activity being Commercial and Conspicuous
Most police departments can't afford special vice units, and such investigations are costly and time-consuming. They go after it when opportunities avail themselves
Vice enforcement encourages illegal police activity, like wrongful searches, planted evidence, entrapment, corruption, and organized crime infiltration
In summary, police discretion appears to be a double-edged sword. It can be used for good or bad. It's not as simple as it being right or wrong. Certainly if the sources of discretion included individual police officer prejudice, whim or caprice, this would be completely wrong, but there are other, more important causes of discretion, as we have discussed.
(1) Restrictive policies -- these tend to be big rule books that specify as many situations as possible and contain severe restrictions on officer judgment.
(2) Discouragement policies -- these tend to only list the most extreme and critical situations an officer will face.
(3) Judgmental policies -- these tend to only give general guidance that is generic to all circumstances. Ironically, it's the kind of policy that's easiest to get terminated under from the officer's point of view.
Exceptions to Domestic Violence Arrest Policy
Gender Bias in CJ: a Male Feminist View
Use of SWAT tactics to Evict the Homeless
Police and Prostitutes
Exclusion of Evidence due to Police Improprieties/Discretion
The History of Policing Violence Against Women
Lecture Notes on Issues in Policing
American Friends Service Committee. (1971). Struggle for Justice. NY: Hill & Wang.
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.
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.
Lundman, R. (1980). Police Behavior: A Sociological Perspective. NY: Oxford.
Manning, P. (1977). Police Work: The Social Organization of Policing. Cambridge: MIT.
Sherman, L. & R. Berk. (1984). The Specific Deterrent Effect of Arrest for Domestic Assault. American Sociological Review 49(2): 261-72.
Smith, D. & C. Vishner. (1981). Street-Level Justice: Situational Determinants of Police Arrest Decisions. Social Problems 29: 167-77.
Sullivan, D.C. & L. Siegel. (1972). How Police Use Information to Make Decisions. Crime and Delinquency 18: 253-62.
Walker, S. (1993). Taming the System: The Control of Discretion in Criminal Justice. NY: Oxford.
Last updated: 01/06/04
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