Discretion strategies in organizational decision-making

Law Enforcement - Police Discretion

THE USE of DISCRETION in LAW ENFORCEMENT

Understanding Police Discretion: Effective police operations requires sound decision making at every level, starting with field contacts between first-line officers on patrol and citizens all the way up the ranks of operational supervision and department administration and policy making.

Some of the most important decisions made by every police officer, beginning with his first probationary tour of duty, are the decision to refrain from taking enforcement action where, technically, enforcement is justified. That makes perfect sense: if every minor violation of penal law that allowed enforcement or arrest necessarily required enforcement or arrest, police agencies would be perpetually busy processing enforcement of the types of violations that do not threaten the safety and welfare of citizens and society.

Taking enforcing action just for every traffic infraction officers observe would require every officer on patrol to spend every working minute of every tour enforcing traffic laws. Furthermore, taking enforcement action on every observed traffic violation would make it impossible to focus on enforcing serious and potentially deadly traffic violations, by the sheer number of inconsequential violations. The discretion to make autonomous decisions about whether or not to initiate enforcement action, therefore, is integral to the realities of maintaining a police authority. Discretion in policing often refers to the exercise of autonomous choice in the decision to affect an arrest or not to affect an arrest at the operational level in situations where the penal law allows but does not mandate arrest for the criminal conduct involved. In theory, the totality and character of circumstances surrounding law enforcement issues determines the appropriate use of discretion, which is a perfect approach, in principle. However, in practice, ensuring that officer discretion is applied or not applied) only in circumstances where the decision rests with the officer. The problem is that the line between lawful the exercise of discretion and unlawful applications in the field lends itself quite easily to blurring. Because the issue normally arises in operational police-citizen contacts under the officer's exclusive control, supervisors and administrators cannot observe the field contacts that give rise to those arrest decisions. Instead, they must rely on the "honor system" in many cases, because their knowledge of the facts is often limited to the officer's report narrative.

Combined with the difficulty of this lack of transparency is the simple fact that police officers are human beings with some of the same psychological tendencies and response patterns, experiences, expectations, stress factors, and myriad other idiosyncratic elements to their decisions. Emotions and other personal issues sometimes dictate the officer's response to situations in the field, instead of professional standards.

The range of factors capable of influencing enforcement or arrest decisions includes sympathy for the offender on one side, to personal dislike for the victim, on the other side; it also includes an infinite combination of variables in-between those two polar extremes.

Benefits and Problems Associated with Police Discretion: The primary benefit to the proper exercise of police discretion is, as suggested, that it makes operational policing of serious law enforcement matters possible, because not even the largest metropolitan police agency maintains a staff of officers large enough to take enforcement action on every observable violation of minor traffic infraction or routine civil code violations within a one mile radius of police headquarters.

Beyond the need for police resources to be available for more serious matters, discretion also factors in police contacts that more legitimately require their attention, but which intuition and/or previous experience leads the officer to believe that the problem is better solved by means other than the fullest exercise of police enforcement authority under the circumstances. So, the proper exercise of police discretion is a matter of how much enforcement action to take as much as it is a matter of whether or not to initiate police enforcement initially.

Where police discretion is exercised lawfully, it facilitates effective policing, both tactically and administratively. The problem is that sometimes, only a very fine line distinguishes lawful use of discretion to improper, unlawful use of discretion. Further complicating the issue is that sometimes discretion is improper strictly (and solely) because of the officer's motive, which he may never disclose, rendering an exercise of discretion that appears technically proper from the outside, completely improper.

In that regard, one of the best examples is the fraternal concept of professional courtesy among police officers as it is commonly understood, especially in certain geographic areas, where it extends to virtually anyone employed in the law enforcement field. But even where professional courtesy is limited to a small locale or to within a single agency, officer discretion is generally considered by police officers to include the discretion not to take enforcement action for traffic (and many other) violations. The reasoning is that the in-service officer is as free to exercise his discretion on a fellow off- duty police officer as he is to exercise the same discretion for any other citizen: if his discretion includes the autonomous decision not to enforce the same violation for a citizen, he may do the same on behalf of a fellow officer in that situation.

The professional courtesy issue illustrates the greatest difficulty in controlling and administrating police exercise of discretion: technically, the in-service officer does have the same discretion in both cases, but his motive, especially if it is an a-priori decision to adopt a policy (as is usually the case) never to enforce a certain class of infractions against fellow police officers, that is, in principle, as improper as the decision to exercise discretion" in the case of all members of his ethnic heritage. Therefore, even within the exercise of police discretion where it is technically proper, subjective motivation and private "policy" decisions of individual officers may be all that distinguishes the lawful exercise of discretion from its unlawful exercise.

Controlling Officer Discretion at the Operational Level through Policing Strategies: Controlling the specific use of police discretion in the field is considered exceptionally difficult because, by nature, it is exercised covertly and it is often disavowed at every level from peers to supervisors (Goldstein 1977). As a practical matter, new officers are often given informal "on-the-job training" on the expected use of discretion (and other tactical procedures and informal "police policy") by their fellow officers that contradicts much of their formal agency training, which, by nature, renders it less susceptible to supervisory control.

This is particularly true with respect to peer-driven street patrol "policy" on the decision to escalate the degree of enforcement as the appropriate punishment for any lack of respect to police authority or simply as a function of police intuition as to what is deserved" by certain types of individuals (VanMaanen 1978). Veteran officers also pass along the benefit of their experience through information and informal instruction for new officers in areas of tactical safety and operational efficiency that often include the expected parameters and circumstances for the application of police discretion, which is difficult to prevent administratively (Wilson 1968).

On the other hand, the factors that most often contribute to the exercise of discretion in operational policing are very similar, whether in the minds of officers acting autonomously, or manifest in unofficial patrol officer "policy" among officers.

Specifically, the factors that generally tend to determine enforcement action on the part of officers include (1) the seriousness of the crime, (2) the degree of intimacy or familiarity between complainant and subject, (3) the attitude and degree of respect shown to law enforcement personnel by the parties involved, and (4) the wishes of the complainant (Black 1971).

This view would suggest that police use of discretion is amenable to administrative policy and supervisory control through policies and procedures that incorporate the understanding of the typical motivational factors in its exercise, both proper and improper. As a typical example of shaping policy (and even law) to address the known tendencies and factors relating to the exercise of discretion, many police agencies maintain administrative policies, and some states have passed mandatory arrest laws, requiring arrest in any circumstances of documented allegations of domestic violence, specifically to exempt that class of violation from any autonomous decision by officers in the field to apply discretion and lesser enforcement in lieu of arrest. Goldstein (1977) views upper management as maintaining a willful or even disingenuous ignorance of police discretion in the field, but in reality, that suggests that one prerequisite of controlling and managing police use of discretion effectively is an administration committed to doing so more than it evidences its difficulty, in principle.

That is why community policing strategies are more conducive to effective administrative control of police discretion on patrol. Community policing philosophy emphasizes accountability of police administrators in conjunction with increased non-enforcement- related police-citizen contact. The former is a powerful motivator to establish and enforce definable parameters for policies governing the proper use of police discretion in the community; the latter tends to reduce adverse interactions between police and subjects to potential enforcement action, thereby increasing the chances that proper discretion will be applied, partly by virtue of the elements catalogued by Black (1971).

By comparison, more proactive, crime-focused, or zero tolerance policing strategies make discretion more difficult to control administratively for several reasons.

Specifically, proactive officers generally function more autonomously in choosing where to initiate police action; consequently, they are involved in much higher proportions of serious criminal matters, requiring many more spontaneous opportunities to exercise discretion.

As a general rule, proactive police officers engaged in crime prevention-focused administrative strategies encounter more dangerous situations and also come into contact with more minor crimes in dealing with individuals suspected of involvement in serious crimes. Experience (as well as intuition) suggests that officers involved in the more dangerous pursuit of serious crime are less amenable to administrative control where official policy contradicts what the officer perceives to be a matter of officer safety in the field (Klinger 1997). Likewise, greater exposure to serious crime naturally increases the officer's tolerance level for less serious crime, and in that environment, the line defining what the officer perceives to be proper use of discretion shifts according to the same underlying principle giving rise to police discretion for the purpose of furthering operational objectives in the most general sense (Wilson 1968).