Discretionary Situations for a Police Chief Discretion in the Police Department

Discretionary Situations in Criminal Arrests: "Stop" and "Frisk," Racial Profiling

The expectation is that public administrators apply a balancing act in the decision making process. Focus for this study is on law enforcement administrators, especially police chiefs, on their responses to their officers' discretion to criminal arrests. The argument put forth is that police discretion is limited by managerial and information technology monitoring methods, which direct police officers to adhere to set up procedures (Chan, 2003; Rowe, 2007). Given that police officers usually have the opportunity to make a decision on whether to apply laws. This concept paper finds that there is a close relationship between management decisions and use of discretion. It is on this basis the research will focus on the police chief's management decisions and the use of discretion in two major scenarios.

A police department has a wide policymaking discretion to permit some offenders to continue committing or arrest some offenders in a criminal misconduct. The manner in which the police department will exercise this discretion can create distributive harmful consequences to the judicial or the public system (Nirej, 2011). Police officers make decisions on whom to stop, search and arrest, with the constitution criminal procedure making an attempt to regulate how police make decisions. This, therefore, leads to the criminal justice perspective that arrests made based on probable cause are legitimate (Whren v. United States, 1996). According to Nirej (2011) police officers make this decision based on their police department procedure, as their administrators- police chiefs -, often tend to target some offenders and allows others to engage in criminal behavior (1172). This leads to the first situation where, departmental discretion leads to proactive police arrests based on identified criminal misconduct of certain ethnic, social economic and geographic groups.

This circumstance has led to a situation where police narcotics enforcement activities have increased America's prison populations with poor men from African-American and Latin ethnicities (Lamberth, 2006). In that, in any given city, the pool of probably narcotic offenders will largely be arrested from the target population of the police departments. In the process, this discretionary practice of police officers has led to a creation of two distinct classes of narcotic offenders; (1) an elite, class of Liberal Arts College and urban periphery narcotic offenders, which is different from (2) working class color neighborhood narcotic offenders from the urban core (Nirej, 2011). Therefore, in such a situation the police departmental practice will influence an individual police officer's decision to arrest a suspected narcotic offender based on their race, ethnicity, geographic or socio-economic situation.

The controlling protocol surrounding police discretion in racial-criminal arrests described above entails the Fourth Amendment regulations. The Fourth Amendment requires that individual police officers distinguish between the prospective guilty and innocent, by writing race out of the jurisprudence ( Lamberth, 2006; Miller, 2006). On this jurisprudence, an officer has "probable cause" and "reasonable suspicion due to articulable facts" that there was an occurrence of a crime before they can legally arrest, search and detain the individual and their property, as argued in Terry v. Ohio, 1968 (Nirej, 2011). Since this controlling protocol is used in defense of a suspect in a court of law, the role of the police chief, therefore, is to ensure that his officers find probable and reasonable cause in any arrest.

Based on the Fourth Amendment protocol, a police officer has probable cause to think that a certain individual is in the possession of narcotics, however minor, and therefore can detain and search the suspect (Terry v. Ohio, 1968; Atwater v. City of Lago Vista, 2001). Police chiefs often use this protocol not to retain their officers and the use of authority where there is a suspicion of narcotic crimes, especially in ethnic neighborhoods that have a history or prior record of the offence. The reason given by police chiefs for their officers' discretion in the search and detention of suspected narcotic offenders from certain racial neighborhoods is that, a court often is clear that it does not use the Fourth Amendment to prevent the exercise of police authority where there is a basis for criminal code (Atwater v. City of Lago Vista, 2001). The repercussion of this statute consequently is that, police chiefs and their departments have considerable discretion in the selection of the many types of offenders (Nirej, 2011). This creates discretionary alternatives in criminal arrests for police officers when the Fourth Amendment is applied,...

This was seen in United States v. Whren, where a court ruled that a police officer has subjective motivation to detain a suspected individual irrelevant of the violation of the Fourth Amendment (Illinois v. Lidster, 2004). In this case, the court found that the arresting undercover officers had probable cause to suppose that Whren had minor traffic violations. However, the real reason for Whren's arrests was that the officers had already pulled him over due to his African-American status and had narcotics in his car (Illinois v. Lidster, 2004). However, the regulations of their police department prohibited the enforcement of minor traffic violations by undercover narcotic police officers (Nirej, 2011). The argument made by the Whren's defense was that if the officers did not have this stereotypic assumption that black motorists had narcotics, they then would not have pulled him over. The court rejected the defense's motion, that the arrest was a violation of the Fourth Amendment, inclining that police officers had the discretion to arrest with probable cause even when the Fourth Amendment on racial profiling was violated.
Apart from the exercise of the discretionary alternatives to the Fourth Amendment, police chiefs offer different justifications for the appropriateness or inappropriateness of the use of discretion in criminal arrests. This is seen where, proactive police arrests are made based on discretion decisions of the police department policy makers and administrators especially the police chief. This because the discretion to make an arrest of an individual police officer is determined by how, police officers are distributed across the jurisdiction and by extension the offender's demographic profile, by the police chief (Simon, 2007). According to Nirej (2011) proactive policing especially narcotics enforcement is determined by the discretion of the department. This discretion by the police chief deploys police officers to certain demographic profiles based on enforcement priorities and enforcement tactics (Simon, 2007). Therefore, the reasons given for racial profiling in narcotic arrests by police officers are that these arrests occur due to a precinct's experience narcotic cases in a particular area and criminal rates. The police chief has the ultimate discretion to allocate more police officers and undercover narcotic officers to particular demographic regions due to enforcement strategies required to combat high level of narcotic crimes exhibited in such areas (Simon, 2007). The prevalence of crime like narcotic offences in particular demographic groups has been an excuse by police officers to exercise their discretion to make arrests, making difficult for the legal system to prove racial intent. Such departmental decisions determine the type of crime officers to focus on in any location. Police officers for this reason will make a decision to arrests on certain crimes like narcotics that are persistent in a particular community, overlooking misconduct viewed as minor like over speeding in an upper class neighborhood (Simon, 2007). The other reason is that departments are not compelled by politics or law to be transparent on who they decide to exercise discretion, especially where the policing policy program is to eliminate disorderly behavior and to improve the quality of life (Nirej, 2011). The argument for discretion in criminal arrests is that arrests are the key means by which modern police departments can control the arsenal of crime.

However, there is proof that the use of discretion in narcotic arrests influenced by race is inappropriate. The reason for this is justified by limiting the application of the Fourth and Fourteenth Amendment by focusing inquiry on the moment the police officers and citizens come into contact, to adverse the equal protection claims (Harcourt, 2007). The argument is that police break racial clause in the Fourth Amendment by unfairly using their discretion to search minority motorists for narcotics in the name of probable cause, since race is a negative proxy for guilt (Harcourt, 2007). This argument led to the "Driving While Black" campaign, which created awareness among public administrators in the police department that racial profiling was wrong. The legal justification for the inappropriateness of racial profiling in criminal arrest discretion was that it was wrong if there was abundant proof that the police enforced criminal law against a person because they were from a racial protected class (Harcourt, 2007). The discretion practice is also inappropriate if there is proof that the police enforced selective or discriminate arrest actions against a racial group over another. This is based on the "Disparate impact" where police arrest offenders from a minority…