Term Paper: Police Discretion
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Police Discretion and How an Officer of the Law’s
Personal Judgment is Important
Rafael Hohmann
Criminal Justice 1010
Although police warnings and arrests are bound by many rules, codes of conduct,
and limitations; an officer is sometimes placed in a situation where he/she must rely upon
their own judgment to analyze the given scene and decide what course of action to take
due to the innumerous amounts of possibilities that could occur on the job. There are
many occasions in which the officer will be in a scenario which they have never seen
before or trained for and in which there is no guidebook to give them steps to follow.
Along those lines, officers will have to use their own personal choice on whether to make
any sort of move for -or against- a possible suspect. Up to date, police discretion has
been a common tool all officers have used in law enforcement but this tool has also been
under fire from the public and even dubbed ‘unethical’, ‘unfair’, or the current favorite of
our society -‘racist’.
When asked on whether police officers should exercise discretion, it is not a
matter of just yes or no -but a matter of amount. There are limitless possibilities for
various scenarios in which an officer can find him/herself in and to make specific rules
and boundaries for each one is impossible. There always will be discretion and the
amount used is based off of a contemporary definition written in Arrest Discretion of
Term Paper: Police Discretion
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Police Officers- The Impact of Varying Organizational Structures by author Richard F.
Groeneveld: “The fewer the rules about handling incidents and situations, the more
discretion officers can exercise.” If whether or not discretion should be used is not the
issue, but amount is, then one must ask the question of the value behind the operational
decision: Does it help the practice of law enforcement and public safety? In the same
source cited before, there is a chapter that speaks of research, analysis, and gathering of
statistical data to determine the measure of organizational influence and the worth of
discretion. They break it down by stating that from all the many arrests made, few are
brought for prosecution, and even less go on to become convictions. So does that mean
that many of these officers of the law are arresting nilly-willy based off of what they
personally think is wrong and after careful analysis of the courts many of these people are
found to be innocent or not worth the time and effort to arrest in the first place? Well the
source goes on to state, “Critics argue that such a formal position of action is utilized to
maintain a level of lawful justifiability and to display quantitative evidence as to the
effectiveness of the organization. The police can maintain that they have done their job,
and the breakdown of the system comes from the failure of prosecutors to prosecute, or
the reluctance of courts to keep criminals confined.”
The quote goes hand-in-hand with police’s ‘broken-window theory’ in which
through the prevention of the smallest crimes -even if the officer has to use a more
‘intimidating’ attitude (not abusive or violent attitude mind you)- police can deter or
discourage potential criminal activity from happening in a larger scale. So is discretion
justifiable due to the potential good it can do for a community? Depends on your
viewpoint. On one end of the radical scale you have a scene that would fit right into
Term Paper: Police Discretion
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‘Minority Report’ which through extreme discretion arrests are made for those who could
show even the slightest sight of trouble and in which the words ‘unethical’, ‘unfair’, or
‘racist’ could then accurately be applied and on the other end of the scale one would have
this wondrous potential for no criminal activity or any suspicious behavior because
criminals would be too scared of being caught. While both radical extremes are not
favorable, having a medium dosage of discretion could do a community good.
Discretion will always raise ethical questioning and judgment because everyone
has their own opinion. Because discretion can sometimes be difficult to determine in
quantity amounts, one could ask whether the police should be policed. David M. Jaros
perfectly explained it in his Boston College Law Review -Preempting the Police: “The
challenge of regulating police discretion is exacerbated by the fact that a great deal of
questionable police activity exists in the legal shadows- unregulated practices that do not
violate defined legal limits because they have generally eluded both judicial and
legislative scrutiny.” Jaros understands that along with the potential to do much good,
discretion also has the potential to encourage a lot of corruption in the police force.
Understanding that discretion is needed, there needs to be a way to regulate it or have a
definitive boundary of a set of limitations in which officers cannot cross over. Jaros
states, “instead of establishing a floor for impermissible police misconduct and then
ceding responsibility to the legislative branch, state courts should become more
interventionist-prodding legislators to provide greater guidance about police activities
that they condone by forcing them to explicitly endorse questionable police practices.
Accordingly, state courts should use the intrastate preemption doctrine, which holds that
state law can supplant municipal authority, to find that local police officers may not
Term Paper: Police Discretion
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engage in certain activities.” Unfortunately finding these definitive boundaries,
limitations, and acceptable interventions that both parties will agree on will all need infield testing. Evidence needs to be made on whether certain limitations on discretion will
help make operational decisions more ‘ethical’ while at the same time not hurting an
officer’s ability to do his/her job.
‘Policing the police’ has been a possible solution already addressed in quite a few
cases such as the 2001 case Saucier v. Katz. Ryan E. Meltzer’s title of his Texas Law
Review article ‘Qualified Immunity and Constitutional-Norm Generation in the PostSaucier Era: "Clearly Establishing" the Law Through Civilian Oversight of Police.’ is
one of many papers proposing a regulation of discretion and police power. Meltzer
follows closely on the details of the Saucier v. Katz case stating through his own words
and in the words of the court judge, “the Court reasoned, (it) would ensure that
constitutional law—and with it, liability for violations of once-novel constitutional
rights—would continue to evolve.” Laws -especially dealing with the variety of
situations encountered in discretion- have to be flexible but established. In cases such as
the fourth amendment Meltzer states, “The principal reason for -disparity (in laws dealing
with discretion), as Justice Alito suggested in Pearson, is the fact that certain
constitutional claims are unlikely to see litigation outside of the qualified immunity
context—for example, Fourth Amendment searches and seizures not resulting in criminal
prosecution and incidents involving excessive force.” He’s explaining that there will be
situations that will not be defendable by specific laws and so will need diversity of
judgment.
So in conclusion, law-bound discretion policed by those in authority and officer
Term Paper: Police Discretion
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action scrutiny are an acceptable alternative to having no discretion at all. There are
situations in which laws and rules don’t specify how to react and in which officers will
have to make their own decisions based off of what they know and have been taught.
Ultimately they will have to decide on what to do and how to act using this discretion
which at best can be limited by guidelines that could be taught before the officer goes on
the field and then enforced by a board of review or judicial system.
Groeneveld, Richard F. (Pub. 2005) Arrest Discretion of Police Officers : The Impact of
Varying Organizational Structures. Retrieved from
http://eds.b.ebscohost.com.dbprox.slcc.edu/eds/ebookviewer/ebook/bmxlYmtfXzE1MjQ
zMl9fQU41?sid=4a6f6679-a0d4-4b55-b211ce75cd9259ce@sessionmgr111&vid=3&format=EB&rid=1
Jaros, David M. (Pub. 2014) Preempting the Police. Retrieved from
http://eds.b.ebscohost.com.dbprox.slcc.edu/eds/detail/detail?vid=10&sid=4a6f6679a0d4-4b55-b211ce75cd9259ce%40sessionmgr111&hid=111&bdata=JnNpdGU9ZWRzLWxpdmU%3d#d
b=lgh&AN=98512181
Meltzer, Ryan E. (Pub. April 2014) Qualified Immunity and Constitutional-Norm
Generation in the Post-Saucier Era: "Clearly Establishing" the Law Through Civilian
Oversight of Police. Retrieved from
http://eds.b.ebscohost.com.dbprox.slcc.edu/eds/detail/detail?vid=12&sid=4a6f6679a0d4-4b55-b211ce75cd9259ce%40sessionmgr111&hid=111&bdata=JnNpdGU9ZWRzLWxpdmU%3d#d
b=buh&AN=95693751