The execution of discretion in judgment among police officers has been studied for decades (De Lint, 1998). Before the 1960's,
For some three decades now it has been established knowledge that police officers use discretion (De Lint, 1998). Through the 1960's, officers were expected to use "common sense," with little attention paid to analyzing situations where discretion was called for or for applying specific training to improve the kinds of judgments made in such situations. Obviously, police will have to use discretion, but one response to the problem of discretionary judgments, some of which led to clear abuses of police power, was to make the training of police officers more academic. The assumption was that better-educated people make better judgments. However, research on the outcome of this approach showed marginal improvement at best (De Lint, 1998). While no one is opposed to having well-educated police officers, the other approach is to provide structured training in discretionary decision-making. Thus, today's police officers have much more specific training on when to fire their weapons and how much force to use when arresting a suspect. This in turn has reduced incidents that would be considered abusive by today's standards. Situations such as the beating of Rodney King stand out because virtually everyone today agrees that no more force should be used than necessary to subdue an arrest subject.
There is a mythic aspect to the issue of what police officers should and should not do in the execution of their duties. Officers shared tips among themselves, and maintained a code of silence regarding lapses of judgments within their ranks. The "blue culture" remains a problem when investigating instances where an officer's execution of individual judgment may not have been optimal. In addition, the public holds varying views of the police and the actions they take. Generally speaking conservatives tend to have more faith in police and the choices they make, and tend to support policies that give them the greatest amount of discretion, even though that may lead to excesses (Wu, 2004); while liberals, as a generality, tend to distrust police more, want more restrictions on what they can and cannot do, and sometimes see even necessary police actions as coercive (Wu, 2004). All of this makes an atmosphere that leaves our police force wondering what they should do, and when, and under what circumstances.
The best solution for police forces may be "judgment drills," (Kelly, 2003), where officers consider the set of facts in hypothetical circumstances, consider what actions they might take, and discuss and consider the ramifications of each choice. These drills should be conducted both with students and as refreshers for other officers.
It's unrealistic to think that police officers will never exercise personal judgment, or discretion. Even if it were possible to determine all possible circumstances, under all possible conditions, no human being could study them all ahead of time, memorize the "right" response based on each variable, and then execute the "one right answer," sometimes within a split second. Some situations call for discretionary judgment on the part of police officers.
Public substance abuse:
Some examples found in the literature seem more clear cut than others, however. One publication suggested that if an officer saw someone walking down the street smoking a marijuana joint, the officer might be able to exercise some discretion regarding whether to arrest the individual or not, depending on the neighborhood (De Lint, 1998), and that when officers don't have that choice, they feel frustrated. However, most citizens would view such a public display of lawbreaking as an obvious situation calling for arrest, if for no other reason than they would not want their children to see such an action overlooked by a police officer.
Different neighborhoods handled differently:
When William Bratton, former New York City Police Commissioner, was interviewed, he argued that different neighborhoods might want laws enforced differently. He argued that this was the basis for "community policing." (Newfield & Jacobson, 2000) He said that different communities want different kinds of crime made a priority. He used Harlem as an example, and said that in 1994 and 1995 they had to deal with drug dealing, prostitution, gaming, and other public crimes. He also said that after public street problems were under control the police were under pressure to make more arrests, which to Bratton didn't make sense (Newfield & Jacobson, 2000). However, it's hard to imagine any neighborhood that would be willing to have those crimes, when taking place in full view of the public, ignored. If the police target drug dealing say, in Harlem, more than, say, the Upper East Side, charges of racism would inevitably follow. While there may be a place for police discretion, it should not be up to the police officer on the street to decide which public crimes get ignored and which get dealt with.
Any time a police department uses racial profiling as part of a process to decide whom to stop, that practice requires judgment and discretion on the part of the officers. While departments try to be as precise as possible, they know that one sex over another, one race over another, and one type of car over another is more likely to be transporting drugs for the purposes of selling them. Bratton argues that these rules are still important, that things like profiling actively discouraged crime. He suggests that if crime is down, and we do away with the tools that helped reduce crime, such as profiling, in another five years all the gains will be gone (Newfield & Jacobson, 2000). He used the example of Staten Island, a borough in New York City. Only 5% of the residents of Staten Island are black, but 50% of those stopped by officers on Staten Island are African-American. He argues that this is justified because the only real high crime area on Staten Island is in the housing projects, whose residents are largely African-American, making it a reasonable assumption that on Staten Island, Blacks are more suspect (Newfield & Jacobson, 2000).
Many would have a problem with this policy. Instead of just stopping large numbers of people based solely on race, the officers on Staten Island should have specific profile guidelines regarding suspicious behavior. Race alone should not be a factor. If 50% of those stopped are Black, then 50% are not. The department should analyze the final outcomes of these stops to determine what conditions really made stopping individuals a productive police activity.
Police officers routinely choose whom to stop for traffic violations, and how to deal with them once they have been stopped. For instance, police are completely justified in pulling over any person who does not use a turn signal before changing lanes. However, if they did that, they would have little time to do anything else. They would irritate the drivers, who would view it as trivial, and while they were busy writing a ticket for not using a turn signal, many speeders might pass by, putting other drivers as well as themselves at serious risk because their reckless behavior went unchecked. Other departments won't pull someone over unless they're going more than ten miles over the department, while some small towns have the reputation of "speed traps," using sudden and unexpected lowered speed limits to increase the town's coffers.
No doubt traffic officers are told to ignore issues of simple failure to use a turn signal in most cases, but if it is combined with reckless driving, such as tailgating, repeatedly changing lanes at high speed in congested areas, or passing on shoulders, a different decision would probably be made. In all these cases the officer is exercising discretion. Departments should have clear standards about that traffic violations will get priority, so officers can be free to deal with serious issues, such as reckless driving and incidents of road rage.
Police departments know that in most cities, prostitutes will walk some of the streets looking for customers. Sometimes this activity is restricted to areas of the city not active at night, but in other cases residential streets become mainlines for prostitution at night. With prostitution can come other problems such as drug sales and associated violence. Some streetwalkers are obvious, but others might just look like young women headed for clubs. This means an officer cannot always be certain a woman is a prostitute based on her appearance.
Often departments set up formal programs to deal with prostitution, and then the discretionary decision becomes "Do we arrest the prostitute, the customer, or both?" Often when prostitutes are arrested they're released within a few hours. Some communities publish the names of the arrested customers, trying to embarrass customers away. It seems unreasonable to target one group over the other. If both break the law, both should be arrested. If the arrest process is a revolving door for the prostitutes, then the community may need to change their laws so that being arrested…