Police Discretion
Police Discretion: A Review of Literature
Jose Estrada
University of Texas at El Paso
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Police Discretion
Abstract
Each and every officer in the field interprets police discretion differently. Police
discretion is not a source that an officer can acquire by going to a Police Academy or by the
books. It is rather a more complex term that requires experience on the streets, good
police/community behaviors, morals, code of ethics, and core values. Without any of those, poor
judgment would be implemented in any situation. Abuse of authority is also a big issue.
Discretion affects many people in countless different ways, either because of ethnic/racial
profiling or because the officer is related to that individual or anything of that sort. Police
discretion is going to be portrayed differently in any given situation because not every cop has
the same points of view. Each cop is going to respond differently, this is called lack of
consistency. This literature review is going to explain some of the ways police officers interpret
police discretion. It is also going to give some factors about lack of consistency and also state
who is affected by police discretion. Last but not least, it is going to give some useful
recommendations on how to minimize misinterpretations in police discretion.
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Police Discretion
Police Discretion: A Review of Literature
Regular force rather than atrocious or legal force is dissimilar. Legal force is held on and
being taught on police establishments, institutions or trainings worldwide. The major concern
here is to being able to determine the seriousness of each situation and know how to overcome,
subdue, and take control over the suspects actions before the suspect causes catastrophic damage
to either the officer or anyone around. Legal force also embraces and explains in detail how the
use of deadly force has to be justified. Regular force is developed on the streets rather than the
books. This type of force is not going to be taught by reading or training on a daily basis on a
police institution. Perhaps, going on the streets and encountering a variety of situations, which
requires an officer judgment to decease the harm portrayed by a perpetrator. In more detail, when
the perpetrator escalates a situation by causing more harm to others, the police officer has to take
the appropriate force to de-escalate the situation. As an officer, one cannot go guns blazing at the
perpetrator. They have to take the necessary force to stop the threat rather than just eliminating it.
Justice will be brought on the suspect trial.
Police officers are faced each day with an immeasurable range of situations with which
they must deal with. No two situations they encounter are ever the same. Officers are usually in
the position of having to make a one to two second decision on how to handle a specific matter
without any constant supervision. This is the heart of police discretion. The job as a law enforcer
comes with potential risks. Many of these risks include needless death and/or injury. Police
discretion is established for the officer to interpret good judgment rather than to abuse it.
Discretion deserves serious consideration through the review of these four questions:
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Police Discretion
1. How do police officers interpret police discretion?
2. What factors guide/lead to lack of consistency?
3. How does police discretion affect its stakeholders?
4.What needs to be done to minimize misinterpretations in police discretion?
How do police officers interpret police discretion?
Virtually, every facet of criminal law is covered by the use of police discretion. The use
of police discretion is permitted by the criminal justice system in the United States widely
through law enforcement officers, police agencies, attorneys, correctional officers and last but
not least by parole officers. However, it all begins at the very front line of the law enforcement
system with the “gate-keepers”. The “gate-keepers” are referred as police officers. According to
Gaines & Kappeler (2003), “These gate-keepers are the police and they are the ones who decide
whether to take action, where the situation fits in the scheme of law, rules, and which official
response is appropriate for them to take”. Discretion requires making difficult choices in a timely
manner subject to scrutiny, while exercising good sound judgment on behalf of that police
officer(s).
The first argument in support of police discretion involves the criminal law, because the
nature and extent of the criminal law creates and causes police discretion. In accordance with
Goldstein (1963), “By action, the criminal law has attempted to establish those forms of conduct
which its members desire to be declared criminal”. However, the laws are written and expressed
in such broad terms that often define crimes as vague, and consequently, trying to enforce and
manage this type of legislation is very difficult for police officers. Police officers on the street
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have to make a decision and determine whether the incident they encountered fits the definition
that the law specifies and to what extent. For example, in a case of a rape, the officer has to
determine whether the rape was spousal or statutory. The law states that any sexual abuse or
sexual assault is a crime, but it is up to the officer on how to deal with the situation and
determine which laws has the offender broken. The law simply states the degree of the crime,
and its punishments. It does not cover every single step on how to respond and treat each
situation. It just gives the officer the general idea on how to use their judgment. According to
Wortley (2003), “Police encounter a wide range of behaviors and situations that the law has not
even thought to consider” Legislators create laws due to current facts and situations presented in
the past. They cannot anticipate future crimes with which police officers will encounter. That is
not how it works. Which is why, “no legislature has succeeded in formulating a substantive
criminal code which clearly encompasses all conduct intended to be made criminal and which
clearly excludes all other conduct” (Walker & Katz, 2005, p. 362). In addition, laws become
outmoded due to the fact that social values and community pressures change on a daily basis.
Society is never going to stay the same; this is the reason why laws change. Therefore, police
discretion becomes a great tool when it comes to social problems that are not defined by the law.
It allows them the flexibility and freedom to make good judgmental calls.
The second argument against police discretion is that there are no protocols or manuals to
ensure that consistency across the board is achieved. With that being said, police discretionary
practices are going to be dissimilar from cop to cop, agency to agency, and jurisdiction to
jurisdiction. Entirely, it is left to the decision of the police officer at the scene, in hope that they
will be able to exercise good judgment when making discretionary decisions. Thus, without
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some kind of uniform national guidelines for the use of discretion to outline its scope and limits
etc., injustices can and do occur. Stated by Goldstein and Kleining (1963), “No two police
officers are the same, thus, how can police discretion be exercised fairly to society when officers
have different morals and values? What one police officer may justify in one situation is unlikely
to be the same as another officer in a similar situation “. Without consistency, police officers are
left wide-open for legal suit actions. Officers have a legal obligation to exercise good judgment
and are held accountable for, for any bad decisions committed in any given situation. Individual
discretion is when police officers in essence engage in selective enforcement, which allows them
“to redefine justice in terms of their own priorities, which might not correspond to the priorities
of the wider community” (Wortley, 2003, p. 539). Thus again, injustices occur.
What factors guide/lead to lack of consistency?
Officers’ actions vary from situation to situation. There is no elegant way of saying that
every crime is going to be the same. The term crime denotes that it is an unlawful action that has
to be punishable. This is why we have police officers to respond to those crimes and take action.
No one situation is ever going to be the same. It all begins with the information being relayed by
the dispatcher. That information is crucial for a patrolman because this is going to prepare him
on how to respond to that situation. It’s going to let him know the severity of the situation, how
many people are involved, any weapons on the crime scene, is there any intoxicant substances
involved. It is all the little things that have to be analyzed by the officer prior to making contact
with that scene.
One of the factors that lead to lack of consistency is all of the people involved in that
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situation. It all depends on the actions of those individuals that are going to make the officer
make the proper call. If the people involved in that situation start being rowdy and noncompliant
the officer has to take immediate action to deescalate the aggression to a most passive one.
According to Gleason (2006), “Responding to a particular situation has two components:
reaction (emotions and thought) and action. The law typically focuses on the action, that is, so
long as the action complies with the law, the reason is generally irrelevant”. Is all about the
actions of the individual that make police discretion lack consistency. For example, if an
individual is being compliant with the officer the situation is going to be dealt with a fluent
motion. Now if the individual disobeys all of the commands the officer is giving him, the officer
has to take action and take control of the situation before the individual starts a brawl or worst.
Another factor that alters the use of police discretion and good judgment are the laws.
Laws are constantly changing due to the fact that society changes. New forms of criminal
activity are always being developed. A challenge of lawmakers is to identify shifts in values and
expectations, so that they can pass new laws and amend existing laws. This makes the discretion
of the officer change. The officer has to act according to the severity of the crime and the laws
that the individual has broken. Lets use driving while impaired as an example. Ten years ago the
blood alcohol limit was .10. If the individual blows a .8, the officer has to give him a verbal
warning. Now that the blood alcohol limit law has changed to .8, the officer has to arrest that
person, but prior to making the arrest he has to have probable cause and in addition make some
Field Sobriety Tests (FST). Discretion coordinates with the law, if the law is violated the officer
has to act accordingly.
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Police Discretion
How does police discretion affect its stakeholders?
Perhaps the most prominent argument, surrounding those against police discretion is that
it has great potential for being abused. Discretion allows for police officers to “perform a duty or
refrain from taking action” (Gaines & Kappeler, 2003, p. 251). Therefore, any pre-existing
discrimination and prejudice held on behalf of that particular officer comes into play. People in
the society should all have the same equal rights, one to the other, and everybody should be
treated the same. This is why police are suppose to enforce equality under the law. However, as
stated by Pepinsky (1984), “discretion offers the opportunity for police officers to misuse it, by
treating offenders of different gender; race; class; ethnicity; religion; age etc. inappropriately”.
For example; racial profiling is a good example of police discretion concerning race disparities.
The term “driving while black” was established after numerous studies documented disparities in
traffic stops (where most police discretion is used). According to Walker and Katz (2005), “A
recent analysis of all traffic stops done by the Maryland State Police showed, that officers abused
their discretion in their decision to stop and ticket African Americans on Interstate 95. This abuse
of discretion is what led to a lawsuit against the department”. However, it is not only in the case
of racial profiling that police discretion is evidently abused. Differential treatment of minority
groups especially in the United States has come to be the largest area of documented
discretionary abuse by law enforcement. Under law, all groups and citizens within society are
supposed to be treated fairly and equally. Nevertheless, the misuse of police discretion only adds
to this differential treatment, “with police failing to ensure tolerance for diversity among citizens
in society” (Kelling & Coles, 1996).
Another way it affects the world, is that some of the actions that police officers do bring
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Police Discretion
or form an opportunity for corruption. Corruption is mainly seen in Mexico were the officer
accomplishes a traffic stop, makes contact with the individual and either the driver offers money
or the officer asks for money, or as they call it in Mexico, “mordida”. But not only does it
happen in Mexico, it happens elsewhere. In the U.S it is more discrete than most places since it is
not done frequently. For example, a police officer fails to stop or ticket a motorist for going 80
mph in a 50 mph zone because the driver represents a person of social standing within the
community or is a close friend or family member or is of a similar ethnic group as the officer.
This might not be classified corrupt behavior in and of itself, but does illustrate the undermining
of confidence in the justice system because of unequal application of the law. Furthermore, such
behavior easily leads to corrupt behavior because that officer now may be compensated through
small gifts or other forms of quid pro quo that encourages him to look the other way when
additional violations occur.
What needs to be done to minimize misinterpretations in police discretion?
The use of discretion in the profession of law enforcement has shown to be an inevitable
practice. Police officers routinely use their own judgment to make critical decisions that involve
the life and liberty of the citizens in the community in which they serve. Thus, it is impossible
for discretion to be eliminated. Instead, given the fact that it can be used predominately for good,
the best policy is to have strong internal and external controls to prevent it from being abused.
“This regulation and control over police discretion is what would allow police to go about their
duties and respond to citizens in a way that ensures their individual freedoms are protected. But,
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also allow them to respond to the ambiguities and complexities of certain situations” (Kelling &
Coles, 1996). Hence fairly exercising discretion where and when required.
The best policy recommendations to help control the use of discretion comes from
internal and external mechanisms, as previously noted. Internally concerns within the police
department itself, while external refers to legislation and the community in which police serve.
Firstly, police administrators can help control the use of discretion by their officers through
establishing policies and providing greater direction over their officers. According to Gaines and
Kappeler, “This can be done through the giving of orders and supervision, written departmental
guidelines, and through better training and educational standards”. This way, officers are better
able to understand the full complexity of the situations they might encounter, and make fair
discretionary judgment calls.
Conclusion/Synthesis
Officer discretion is the most essential part and critical feature of being a police officer. It
is the overall police function in regards to the societies goals because it gives the officer the
general idea and responsibility on how to react in any given situation. A quick reaction has to be
made in the decision making of any situation; sometimes a split second won’t cut it. Police
discretion is not something you have to follow by the books. It is something police officers have
to have as a second nature. They have to become fluent at what they are doing; any mistakes may
cost them their life or the life of others.
There is also a term, we as cops, like to call as uncontrolled police discretion. This term
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may cause the police officer to take advantage of his badge and do some crooked stuff. Thereby,
the connection between the community and the police may end up affecting everyone around it.
This is why the administration of the police department creates policies and procedures and the
enactment of laws that put reasonable restraints on the use of police discretion. The possibility of
discretion being eliminated is not possible being that is human nature itself.
Discretion is needed in law enforcement to provide and regulate control and safety over
individuals. Police discretion should not be abolished, just limited. This would give officers
some restrictions so that they would not have as much possibilities to abuse their discretionary
power. Society’s values and morals are one of the reasons police enforce laws. Today’s standards
are different than in the past. Laws change in accordance with what is adequate to the society.
Discretion is a fundamental part in the society, due to the fact that social values and morals
change on a daily basis. The society behavior is what determines what laws should change or
which ones should stay the same. For this to have effect the policy of internal and external
controls should be implemented for the communities’ welfare and good relations within the
police and community citizens.
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References
Gaines, L. K., & Kappeler, V. E. (2003). Policing in America (4th ed). Cincinnati, OH: Anderson
Publishing.
Gleason, T. (2006, January 1). Police Chief Magazine - View Article. Retrieved December 4,
2014, from
http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&artic
le_id=1054&issue_id=112006
Goldstein, H. (1963). Police discretion: The ideal versus the real. Public Administration Review,
Vol. 23, (3), pp. 140-148.
Kelling, G. L., & Coles, C. M. (1996). Fixing broken windows: Restoring order and reducing
crime in our communities. New York, NY: The Free Press.
Kleinig, J. (1996). Handled with discretion: Ethical issues in police decision making. Lanham,
MD: Rowman & Littlefield Publishers.
O’Connor, T. (2004). Police discretion. Retrieved March 20, 2008, from
http://www.apsu.edu/oconnort/4000/4000lect07.htm
Pepinsky, H. E. (1984). Better living through police discretion. Law and Contemporary
Problems, Vol. 47, (4), pp. 249-267.
Walker, S., & Katz, C. M. (2005). The police in America: An introduction (5th ed). New York,
NY: McGraw-Hill Companies.
Wortley, R. K. (2003). Measuring police attitudes towards discretion. Criminal Justice &
Behavior, Vol. 30, (5), pp. 538-558.
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