Police Discretion: The Good, The Bad, and The Ugly
Police Discretion: The Good, The Bad, and The Ugly
Jackson Blair
Criminal Justice 1010
Police Discretion: The Good, The Bad, and The Ugly
The police carry a huge burden of responsibility to uphold the law – and as fair as we try
to make the law there is always going to be a few situations that don’t fall under a blanket
statement of “this is right” or “this is wrong.” When a situation arises where the law doesn’t give
the capacity to do the objectively correct thing – officers are able to exercise discretion. The Law
Dictionary defines Police discretion as “the decision-making power afforded to police officers
that allows them to decide if they want to pursue police procedure or simply let someone off with
a warning.”[1] This has a few positive side effects – first and foremost it allows the police to
build rapport with their communities, it allows for fewer cases to be caught up in the judicial
system, and oftentimes it serves the same purpose as sending an individual through the courts
without sacrificing limited resources. The flipside of this of course is that discretion can lead to
racial profiling, and it promotes inconsistency.
The National Institute of Justice endorsed a published paper that sought to find the
underlying root cause and establish a need for police discretion – in this paper we learn that the
reason many police have to exercise good judgement is because training simply tells them what
they can and cannot do. Through further elaboration we are put under the impression that any
time anything has been brought up to the policy managers – they are reluctant to listen or change
policy because the general public is focused on buzzwords and any policy maker that changes
policy to be more lenient in any given situation will appear to be “weak on crime” and as a direct
result their public image will be damaged – potentially putting them in a tough situation when it
comes time to cycle them out for a replacement. [2]
In any given interaction with the public – you have the potential to make an individual or
group of individuals upset with you, and as a result who you represent – in the case of a police
officer pulling over someone for a minor traffic violation rarely will the individual understand
Police Discretion: The Good, The Bad, and The Ugly
that they are in the wrong and even more rarely will they be happy about getting a ticket for it. In
these situations the eyes aren’t ever on the individual officer – the focus is on police as a whole.
According to the Bureau of Justice Statistics data 40.3% of traffic violations resulted in a
warning rather than a citation, ticket, or fine. [3] In Whren et al. vs United states 1996 the
supreme court granted police officers the right to stop any given driver for a minor traffic
violation if they suspect they are involved in a different, more severe, crime. This would indicate
that when people are let off with a warning one of two things is happening, the first, that the
officer is convinced that the individual isn’t going to speed any more, or more than likely – the
traffic stop served as a “wellness” check in which the officer is looking to see that there is no
other crime being committed – and without the suspicion that something else is going on they
wouldn’t have made the stop to begin with. Furthermore – these interactions are recorded as
traffic stops – the driver being pulled over suspects it to be nothing more than a traffic stop and
getting let off with just a warning allows them to feel that the individual officer is doing them a
huge favor by letting them off – as a result the perception of the police force is improved. In the
event there was no discretion in these circumstances – the book says if you speed, you get a
ticket, the result of this being “wellness” checks would result in the perception that the police
force is an administrative force operating without any wiggle room in between the pages in
policy written by someone who isn’t on the force and wouldn’t do anything to deter crime or
improve the general quality of life for the community.
It’s no secret that we have limited resources to operate within – the Supreme Court
reports that in any given term there is a caseload of more than 10,000 cases on the docket. [4] In
2005 4.8% of stopped drivers were searched – of this 4.8% only 11.6% of searches uncovered
illegal activity. This shows that marginally more than 10% of stops result in court activity.
Police Discretion: The Good, The Bad, and The Ugly
Following the numbers, taking away police discretion results in 100% of stops interacting with
the court system – given that of the 10,000 cases on the docket a very small amount of them are
traffic stop related – it may not increase ten fold – but there would without a doubt be a
significant increase in cases taking up very stretched and limited resources.
The main drawback of discretion is the potential to lead to racial profiling – the National
Institute of Justice confirms that people of color are stopped more frequently than Caucasians.
Through research there are several different contributing factors to this – first there is more crime
in lower income areas where minorities tend to live which leads to increased police presence,
increased police presence leads to larger amounts of interaction. The next piece is that people
who are lower on the socio-economic scale usually have a level of animosity towards
authoritarian figures. This leads to less respectful behavior during communication and because
police officers are only human – makes it less likely that you’ll get off with just a warning. [5]
Part of being human means that some days you’re going to be in a bad mood – it happens
in every profession and on those days you are less likely to operate outside a specific set of
guidelines and less likely to work towards a better solution. This ties into police discretion
promoting inconsistency when on a good day an officer lets someone off who is speeding 15mph
over because the individual was cooperative and pleasant, but on a bad day someone going
10mph is given a ticket under the exact same circumstances. The only real solution to this is
working to separate your work and personal life – as well as treating every stop as a new
situation and not letting your previous interaction influence your decision.
With all of this the only conclusion we can come to is that police discretion is a necessity.
We live in a world that isn’t black and white, there are too many variables to write a law or
policy book that encompasses every possible situation for every different individual. To mitigate
Police Discretion: The Good, The Bad, and The Ugly
this, and to encourage the right thing to be done police need to have the ability to practice good
judgement backed by stringent training and decent understanding of the circumstances that lead
to any given behavior. Take for example, theft – no one would argue that stealing is the morally
correct course of action for any situation, and our laws are written to express this – however
punishing a hungry child for stealing a loaf of bread doesn’t benefit anyone in any way – this is
where police discretion really comes into play, instead of fining a child the police officer can
take action to improve this individual’s quality of life. The system has drawbacks, and it’s
nowhere near perfect, but as a whole we benefit from the practices that good, honest cops
represent.
Police Discretion: The Good, The Bad, and The Ugly
Works Cited
[1] http://thelawdictionary.org/article/police-discretion-definition/
[2] https://www.ncjrs.gov/pdffiles1/nij/178259.pdf
[3] http://www-personal.umich.edu/~rowebr/pdfs/rowe_ulteriormotives_apr2010.pdf
[4] http://www.supremecourt.gov/about/justicecaseload.aspx
[5] http://www.nij.gov/topics/law-enforcement/legitimacy/pages/traffic-stops.aspx