Discretion & Police Behavior

Explanations of Police Behavior
•UNIVERSALISTIC Perspectives: look at how
officers are similar:
–Psychological perspective. Concerned with the
“police personality.”
–Sociological perspective: emphasizes the social
context in which officers are hired, trained, and
police citizen interactions.
–Organizational perspective: departmental factors
play an important role in police behavior.
–Police culture: police work characterized by its own
occupational beliefs and values.
–Subculture: police work has values imported from outside
Police Behavior
Predispositional theory (Psychological approach):
Police behavior is determined primarily by
characteristics, values, and attitudes of the
individual prior to job.
•Rokeach, Miller and Snyder (1971): police hold similar
political values and share values of authority with
professional fulfillment.
•Caldero (1997). Extension of RMS. Central principles:
–Police have distinctively different values
–Values are similar to the groups from which they are recruited
–Largely unaffected by occupational socialization; Police
socialization has little impact on values
–Values are stable over time
–Regardless of race-ethnicity, values are similar
–Education has little impact on values
•Crank and Caldero (1999) Screening processes insured
that officers held similar values regardless of background.
Police Behavior
Socialization Theories:
Individuals (police officers) are socialized
as a result of their occupational
•Two kinds of socialization
–Formal socialization: results from the selection process,
training, and learning about policies and procedures
–Informal socialization: new recruits interact with older,
established officers
•Informal socialization may contradict formal
socialization “forget everything you learned in training”
•Thin Blue Line, Wall of Silence – reflects high degree of
integration within the rank & file police subculture
–Values loyalty and solidarity above other values
–Rule of law may conflict with Loyalty to Colleagues
Police Behavior
Socialization Versus Predisposition
Why does this issue matter?
•Community policing issue:
How to hire new kinds of officers.
–If socialization, managers will have to change the
–If predisposition, hiring practices have to be changed.
Social reality is complex – “either/or” scenario is
Both are operating & reinforcing.
Discretion & Police Behavior
PARTICULARISTIC Perspectives: concerned
with how officers differ from one another
Worden (1989): officers not psychologically
homogenous. Five ways in which officers differ from
each other.
(1) View of human nature. (Cynicism)
(2) Different role orientations. Crime fighters, problem
solvers, crime prevention
(3) Attitudes toward legal and departmental
restrictions. (Ends justify the means, lack of punitive
criminal justice system)
(4) Officer’s clientele. Judges, MADD—can lead to
selective enforcement.
(5) Managers versus peer group support
Police Discretion
Discretion as Decision-making
1. By a criminal justice official
2. Official action (formal or informal)
3. Based on individual’s judgment about the best or
proper course of action
Discretion is not limited except by law and
administrative policy
Does discretion Increase/Decrease as you
move up the police bureaucracy/chain of
Police Discretion
• When police see something unusual, two
• 1) Whether to intervene & 2) How to intervene
• Bayley and Bittner (1989): from start to finish, in a
routine traffic stop: 770 different combinations of
• Another definition: decision not to invoke legal
sanctions when circumstances are favorable to
them. e.g., legal basis for an arrest is present.
• Example—teenagers drinking in a park
Aspects of Police Discretion
• Street-level Bureaucrats (Lipsky 1968)
– Officers exercise most discretion
– Officers as gatekeepers
– Officer behavior determines how the law is experienced
• Potential for Abuse of Discretionary Power
Denial of due process
Police-community relations problems
Poor management of personnel and planning/policy
• Positive Uses of Discretion
– Proper exercise of professional judgment
– Effective use of scarce resources (efficiency)
– Individualized justice
Points of Discretion
Not limited to arrest; throughout the police repertoire of
legitimate action & department rank
– Patrol discretion
• Pursuit
• Making stops, questioning, frisking
• Arrest
– Order Maintenance/Peacekeeping
Domestic disputes (mediation vs. arrest)
Mentally Ill
– Investigation
• Seeking a search or arrest warrant
• End an investigation
– Organizational Policy Decisions
• Defining law enforcement priorities: traffic; crackdown targets;
tolerance for other kinds of activity
Discretion: Domestic Disputes
• Prevalence of Domestic Violence
– 1 in 6 relationships involve abuse annually
– 25-30% of all couples will experience a violent incident in
their lifetime
– Women are much more likely to be victimized by people
they know. Consistent across class/race.
– Data is lacking b/c of failure to report domestic violence to
the police (50% of the time or more)
• Women who report tend to be low income, working, non-white
• Middle class women rely on alternative means of support
• Most common reason for not reporting: perceived as a private
matter, followed by fear
• Concentrated in certain families (somewhat like gun crimes are
concentrated in specific addresses)
– Victim/offender relationship complicates police response
to domestic situations
Discretion: Domestic Disputes
• Police response:
– Historically, has been an area of tremendous discretion.
– Options:
Arrest – not so common
Separation (physical) – police power is limited
Referral – police power is limited
No action
• Factors influencing decision to arrest in domestic calls?
Severity of crime
Victim’s preference
Suspect demeanor (hostility)
Discretion: Domestic Disputes
Factors influencing decision NOT to arrest?
– Belief it is a private dispute
– Officer judgment victim will not follow through
– Legacy of past dept. perspective to avoid arrest
– Arrest is work for officers
• Presents risks of injury
• Creates higher visibility of officer actions
Discretion: Domestic Disputes
1970s Revolution in DV cases: Mandatory
• 1st attempts to control officer discretion
through policy
• Resulted from efforts to limit police discretion
in the courts on the grounds that ♀ were not
receiving equal protection of the law
• Police response should be guided by citizen behavior,
not by the relationship of the parties involved
• Mandatory arrest policies based upon
premise that arrest provides specific
Discretion: Domestic Disputes
• Does mandatory arrest deter future DV
– Minneapolis DV Experiment (Sherman and Berk 1982)
• Examined deterrent effect of alternative actions on Domestic Violence
– Arrest, mediation, separation
• Cases randomly assigned to each treatment
• Findings: Arrests produced lower rates of repeat violence
• Resulted in widespread changes in policy toward mandatory arrest for
dom. Violence
• Closer inspection revealed a number of flaws with the execution of the
• Results have not been replicable in other cities
• Why? Sample of recidivists; Abuse is normative in relationship; Arrest
alone is insufficient; disconnect between arrest and criminal sanctions;
interaction effect with social capital
– Preferred (pro) arrest has been adopted by most departments
• Other provisions have been developed: training in handling domestic
– Officer response to such policies: generally prefer independence,
officer gender, perceptions of danger, civil liability (both ways)
Sources of Discretion
• The Nature of the Criminal Law
– Substantive criminal law is vague
– Conflict b/t law and public opinion about wrongfulness of
behavior (traffic, drinking, etc.)
– Appropriateness of legal response to social problems
• Work Environment of Police
– Patrol is low visibility; Little direct supervision
– Police are concerned first & foremost with establishing
– Social “morality”
• Limited Resources
– Full enforcement is not realistic or efficient (e.g., length
of time committed to an arrest)
– Discretion is efficient (officers manage time, resources,
J. Goldstein on Discretion
• Total Enforcement
– Police respond to every crime. Only a theoretical possibility.
– Impossible due to constitutional restrictions (privacy protections): Big
Brother imagery. This is known as the area of no enforcement
• Full Enforcement
– The investigation of every disturbing event the police become aware of and
suspect is a legal violation
– Determining that a law has been broken, an attempt to discover the
– Presenting all the information to the DA to determine appropriate action (plea,
trial, dismiss)
– Full enforcement is the expectation of the criminal law (and arguably the
public’s view of how police should do their job)
– Realistic expectation for police? Why?
• Actual Enforcement
– Determined by actions not to invoke the law
J. Goldstein on Discretion in the CJS
Discretion & Police Behavior
Discretion Continued…
Discretion in the Criminal Justice System.
Black : how often do police make an arrest with complainant
and suspect present? 58% in felony situations, 44% in
misdemeanor situations.
Discretion is prominent throughout the CJS
Factors related to discretion:
1. Organizational perspective & policy guidelines
2. Community factors (community demand)
3. Situational elements (legal and extra-legal)
4. Officer variables (attributes, attitudes, etc.)
Discretion & Police Behavior
Factors related to discretion:
Organizational variables
Powerful influence on discretion.
Discretion is most effectively controlled through
–Bureaucratic nature: Purpose of procedure—to
guide and direct behavior.
–Bureaucratic principles can backfire, contributing
to secrecy. Over-bureaucratic departments: too
much punishment alienates officers.
–Informal organizational culture may be more
important than policy
Discretion & Police Behavior
Informal Organizational Factors:
Police Subculture
•Moral grounds of decision making drawn from
subcultural sources
•Emerges from daily practices (routines)
–Social control of territory
•Masculinity & Control
–Uncertainty: exerting control in “risky” encounters
–Marked by strong internal solidarity: Loyalty
•Code of silence
•Master status
–Loose Coupling: Ends justify the means
•Bad guy focus – policy & law may get in the way – moral authority
Community factors
• Community or Ecological Demand
– How is discretion exercised in high crime areas?
– Klinger (1997) argues increased tolerance
thresholds in high-crime (urban) beats
• Neighborhood variables
• Minority neighborhoods:
– more reports,
– more arrests,
– more requests for police intervention
• Urban vs. suburban vs rural neighborhoods
• Low income neighborhoods
– More arrests
Discretion & Police Behavior
Factors related to discretion:
Situational variables
Take 2 forms:
1. Legal Factors
– Behavior constitutes a legal violation?
– Seriousness of the violation
– Availability of evidence
Extra-legal factors
Factors beyond the legal circumstances of the
situation: Suspect, Victim characteristics
Discretion & Police Behavior
Factors related to discretion:
Situational variables.
•Mobilization of the law. Proactive citizen encounters
more antagonistic. Less likely to be supported by citizens.
Police are consequently likely to treat citizens more
harshly. Potential for escalation
•Demeanor and attitude. Disrespectful people more likely
to be arrested.
•Attitude of the complainant. Arrests more likely when the
complainant wants an arrest.
•Race. Police more likely to arrest or treat minorities
harshly. May be due to (1) minorities more likely to resist
authority, but (2) such an attitude may stem from a history
of mistreatment.
Police Behavior
Factors related to discretion:
Situational variables.
•Victim-complainant relationship.
If close, police less likely to arrest (cf. rape). And police more likely
to take action if complainant wants them to.
•Type of offense.
Police more likely to arrest in felony situations. Common-sense
arrest should be based on probable cause, not seriousness.
Domestic Assaults
Stronger response in public settings.
•Presence of others.
Presence of other officers—their expectations. Two-person units:
more likely to treat suspects harshly. Wolfpacking at traffic stops.
Police Behavior
Factors related to discretion:
Individual Officer variables.
•Education, age and experience. Younger officers tend
to be more punitive and aggressive. Quality of older
officer’s work higher.
•Gender. Some evidence suggests that female police
officers are less aggressive. Women less likely to use
•Career orientation and family situation. Walsh (1986)
career-oriented officers more aggressive, increase
chance of being promoted.
Discretion & Police Behavior
Studies of Police Behavior
Police—Street-Corner Politicians (W. K. Muir).
Four modes of adaptation:
•Professional style officers. Compassionate and
comfortable with authority.
•Enforcers: use force when they have the opportunity.
•Reciprocators: compassionate but not comfortable with
•Avoiders: neither compassionate nor comfortable with
Discretion & Police Behavior
Skolnick & Fyfe: Police Culture & Behavior
- Production orientation. Police behavior influenced by
goals and objectives of department.
- Symbolic assailant: person police officers think is
potentially dangerous or troublesome.
- Danger signifiers: behavior, language, dress,
sometimes age, sex and ethnicity. “If it walks like a duck and
talks like a duck...”
- Roots of criminal profiles grounded in beliefs about the
association between “typical” group characteristics and
presumed behavior
Cultural Significance of Racial Profiling
Profiling as a negative:
– Evidence of public perceptions of racial profiling
as a social problem
• Gallup Poll
– Media portrayals of citizen/police encounters
– Legal protection of civil rights
Profiling as a Public Good
– 9/11
• Public opinion polls re: Middle Eastern Americans
Defining Racial Profiling
• Broadest: Treating people differently because of
their race (Feagin 1991)
• Race as a key factor among several factors in
police decisions (R. Kennedy)
• The use of race by police in deciding to make
and decide the outcome of a traffic stop
(Langham et al., BJS 2001)
• Narrowest: Conservative definition is the use of
race as the only factor in police decisionmaking
Cultural Context & the Ideal of
Equal Protection Under the Law
Profiling and the Law
Constitutional Issues are Contradictory
Amendment XIV => Equal Protection
Legal principle of equity as the absence of discriminatory treatment
Whren v. U.S. (1996) Pre-text stops valid
Subjective intent for traffic stops is not relevant (Unlimited discretion in making
The legal threshold for demonstrating racial profiling is difficult
to meet:
The question boils down to how prominently race factored into a police decision
Legal strategy is to file-class action suits:
The result has been court-ordered consent decrees (Data collection, training,
independent observation, etc.)
Profiling and the Law
Recent Developments
– Statute Development in an effort to curb
discriminatory application of discretion by police
– Often accompanied with a data collection/report
filing component for either all stops or all tickets
• Federal Level
– End Racial Profiling Act (John Conyers [D-MI])
• State & Local Level
– Numerous statutes often punctuated with data collection systems
– Illinois is an example with its traffic census
What’s the best way to study Police Bias?
• Carter & Katz-Bannister on Racial Profiling
• Scenarios:
A. White officer’s traffic stops are 85% minority
B. Black officer’s traffic stops are 85% minority
C. Officer stops 80% of all white stops for moving
violations and 80% of all minority stops for equipment
D. PD conducts vehicle searches in 15% of Minority
stops and in 10% of White stops
• Things to consider in order to determine whether
profiling is taking place?
Race and CJS Control
Discrimination vs Disparity
Discrimination: Differential treatment based
upon an extra-legal characteristic
It may take a variety of forms and comes in a
range of degrees (from relatively minor to
Disparity: Different outcomes that are not
necessarily caused by differential treatment.
Context is important. Why?
Discrimination may vary across: Officer
actions, Officers, Dept. units, Police Depts,
Communities, etc.
2 Prominent Contemporary Studies
• Lundman (2003)
– Data from national Police-Public Contact Survey (n=7,651 – subsection of 1999
Major Findings:
– 1) Race & Sex factor into stop decisions
2) Af-Amer & Hispanic more likely to judge reason for stop as illegitimate
• Meehan and Ponder (2003)
– Data drawn from a suburban Detroit PD
– Focus on mobile data terminals (MDT)
– Measures of proactive police surveillance activity
Major Findings:
– 1) Much higher probability of surveillance & traffic stops for African Americans
2) Most pronounced in “white” beats (intersection of race & place)
3) Queries for Af-Am drivers was the highest where “hit” rates were the lowest (in
white beats)
4) Styles of officers finding: 112 officers broken into three groups based upon
percentage of proactive MDT queries
High MDT users (n=12) accounted for 43% of the AfAm queries
Patrol technology facilitates profiling
Police exhibit racial bias in making MDT
inquiries, traffic stops and searches: So what?
• Criminalization of Blackness, especially in
contexts where blackness is threatening
(white neighborhoods)
• Institutional Racism vs. Individual Racism
– Organizational Response to Problems
• Sensitivity Training not likely to be effective
• Contingent meaning of Race & Place
• Negative impact on minority trust in police and
consequences for community policing