Joseph Smith
Criminal Justice 1010
Michael Cupello
Term Paper
Police Discretion
Many questions arise when dealing with the topic of Police Discretion it is somewhat of
a grey area for people in law enforcement. There are pros and cons to allowing police officers
to use discretionary tactics when dealing with other police officers and the general citizenry.
Some questions that come to mind when I broach the subject of Police Discretion and they are:
In your opinion, do you believe that police officers should exercise discretion?
Does it help the practice of law enforcement and public safety?
Does is assist the criminal justice system in functioning more effectively?
Does discretion raise ethical issues? Should discretion be eliminated?
There are many more questions that can be addressed when looking at police
discretion, ultimately this paper will only be addressing the questions proposed. There are
many people with varied opinions on the matter of Police Discretion, some are proponents of
it, some objectively observe the effects of Police Discretion, and some are vehemently against
the observance of Police Discretion.
In addressing some of the questions proposed earlier there is a story that comes to mind, told
by Gregory Williams that I believe effectively sheds some light on the subject.
In R. v. Coxhead, a constable stopped a motorist observed driving on a sidewalk, cutting
corners, and travelling at an excessive speed. Immediately the driver was given a breath test,
which proved positive, he was placed under arrest and taken to a police station where a more
precise alcohol test, required in English drunk driving cases, was to be administered. Upon
arrival at the station, it was discovered that the driver was the son of a local police inspector.
Aware that the inspector suffered from a serious heart condition and believing the son's arrest
might adversely affect the inspector's poor state of health, the sergeant in charge refused to
administer the test. This refusal resulted in dismissal of the case. Subsequently the sergeant
was charged and convicted of conduct "tending . . . to pervert the course of public justice." The
key issue at trial was whether the sergeant had the power to decide not to give the station
house test. The prosecution presented witnesses, notably a superintendent of police who,
while conceding discretion existed in "trivial" cases, asserted there was no discretion to
terminate a case where there had been a positive roadside breathalyzer test. A retired police
officer was presented as a rebuttal witness, and he contended that enforcement norms
authorized constables to terminate drunk driving investigations. Sergeant Coxhead himself
testified that he believed he had the discretion to refuse to administer the test. (Williams)
Williams goes on to tell that the courts, eventually convicted the constable of misuse of
discretionary judgment, so ultimately even though the constable believed that he was in the
right to do so he was undisputedly proven wrong by the courts. Some would see this as an
abuse of authoritative power; others would view this as a tender mercy. I believe that in this
instance the use of police discretion was justified but abused. The constable may have
terminated the drunk driving investigation for a good reason, but even though he wanted to
save the police inspector from embarrassment and possible health decline, the offender may
never learn his lesson if not disciplined for the act. The next time the drunk driver may kill
someone because of his lack of respect for the law. I believe that the use of discretion used by
the constable was not in the best interest of the general safety of the public.
When trying to define police discretion I turn to Simon Bronitt, he defines police
discretion as such, “A police officer has discretion whenever the effective limits of his power
leave him (or her) free to make a choice among possible courses of action or inaction.” The
definition leaves one wanting for more it is quite broad therein lies some of the problem
without control or limitations police discretion could be misused. On the other hand discretion
is necessary because limited resources make it impossible to enforce all laws against all
offenders; and the strict enforcement of the law would have harsh and intolerable results.
(Bronitt)
Therefore if we just adhere to the letter of the law, and not allow a little bit of discretion
among the men and women we trust with our safety and security; it would be literally
impossible for policemen to do their job and it would have negative and adverse effects to the
general citizenry.
When looking and the ethical aspect of the issue of police discretion I turn to Joseph
Tieger a notable member of the bar of the North Carolina University, and works at Duke
University. Vast discretion, which in practice is unreviewable, is knowingly conferred on
individual policemen. The power to define what conduct shall be criminal is effectively
delegated to the police, enabling them to do on the domestic level what the armed forces do
on the international level-protect the way of life of those in power. (Tieger)
Tieger tells us that although discretion is a useful tool because it allows the courts to
give latitude to police enforcement when they do not have the same latitude the courts are
subject to the letter of the law and policemen have some latitude it can be a double edged
sword.
It is axiomatic, of course, that our constitutional guarantees of due process and equal
protection forbid legislative enactment of criminal laws that invidiously apply only to one class
of persons. It is abundantly clear, however, that there are many situations in which the
legislature gives the policeman the latitude to do precisely what the legislature is forbidden to
do itself. This latitude is not based on an express statutory grant; on the contrary, statutes
frequently purport to mandate full enforcement of all criminal laws. (Tieger)
Police Discretion can be bias and discriminating, it can imperialize the safety of our
communities and citizenry, and it can be unethical at times. Police Discretion can also be a
useful and efficient tool for dealing with criminal activity; it can be a good thing when the right
person uses it correctly. I believe that police discretion should be used but within reason and
with limitations. I believe that the severity of the crime greatly impacts the officers’ leniency. I
do not believe that police discretion should be completely eliminated I think it is a good thing
because if everyone had to abide by the letter of the law every time things would be
unbearable.
Works Cited
Bronitt, Simon, and Philip Stenning. "Understanding Police Discretion In Modern Policing."
Thompson Rueters. (2011): 14. Print.
Tieger, Joseph H. "Police Discretion And Discriminatory Enforcement." Duke Law Journal.
1971.717 (1969): 717 - 743. Print.
Williams, Gregory H. (1989) "Police Discretion: A Comparative Perspective," Indiana Law
Journal: Vol. 64: Iss. 4, Article 3.
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