Police discretion in law enforcement decision-making

¶ … police discretions, its uses, and the abuse of discretionary powers. Simply put, police discretion is the ability of police officers to make discretionary judgements on the job, for example, the decision to give a person a ticket for running a red light rather than giving them a warning. The office in the field has the ability to make a decision concerning the validity of a ticket or arrest, and weigh the seriousness of the crime with the consequences. An example of discretion would be an officer who stopped a person for running a red light, only to discover there was an injured person in the car, and the driver was trying to get to a hospital. In that case, the officer might forego a ticket, and actually help the driver by safely escorting he or she to the hospital. Discretion is the ability of the officer to make decisions according to the situation, rather than simply going strictly "by the book."

Discretion can lead to numerous positive outcomes, which is why most officers support some form of discretion. It can lead to an officer issuing a warning rather than a ticket in certain situations, and it can lead to an officer evaluating evidence and deciding no crime was committed in minor infractions. It can also lead to an officer recommending other agencies for aid, rather than arrest and incarceration. For example, an officer may not arrest an intoxicated homeless person, but rather transport them to a treatment facility where they can get help for their problems, rather than clogging the legal system. Discretion can also help promote community policing, in that an officer may become familiar with a neighborhood or population, and be able to discern between dangerous and less harmful activities within the community.

It is quite clear that in the wrong hands, police discretionary powers could be abused, and that is one reason why these powers generate so much controversy. Discretion could lead a police officer to target one ethnic group, such as blacks or Hispanics, or to continually ignore activities such as domestic violence or drug activity. In addition, discretionary powers and their misuse can lead to police violence and abuse, such as the case of the New York City police officer that tortured a Haitian suspect and was tried for torture (Banks, 2004, p. 32). The use of excessive force or abuse is a discretionary decision based on the situation, the officer's reaction to the situation, and the perceived threat to others. It also makes it easier for an officer to hide their indiscretions, because they are not supervised every moment, and they can misreport or misrepresent their decisions in reports, to hide their questionable discretionary decisions and practices. Clearly, certain situations can lead to abuse of power and discretionary thought, and this has to be avoided for police to retain the trust of the public, the people they are supposed to serve and protect.

There is much discussion about discretionary powers being banned from police departments, and many critics believe there should be no discretion allowed in police departments. One criminal justice expert notes, "[T]he solutions offered for limiting the wide powers of police discretion include judicial rulemaking, legislative regulation, and developing internal codes and regulations" (Banks, 2004, p. 25). These solutions assume that all police officers and situations are the same, and that the same rules and regulations can apply to each and every situation an officer faces every day, and that simply is not the case. In fact, applying strict regulations such as these could actually lead to more inequalities, given situations. For example, if a strict regulation applied to all those who run red lights, the driver with an injured person in the car would be detained for a ticket, without the benefit of explanation. This could potentially lead to the injured party becoming critically ill, or the driver attempting to make up the time lost by speeding or running more red lights, potentially causing more damage to others by an accident. The officer's discretion in helping the driver reach the hospital safely is a clear example of how using discretion can result in more positive outcomes, while removing discretion could lead to potentially serious or deadly outcomes. Therefore, it does not seem logical that a police department could exist without at least some form of discretionary decision-making.

Discretion is used at just about every level of a police department, from the officers on patrol to detectives and even management. Another expert notes, "Police encounter a wide range of behaviors and a variety of situations that the law hasn't even thought about yet. One of the most amazing things about policing is not who they arrest, but who and how many they let go (nonarrest options, leniency, underreaction)" (O'Connor, 2004). Thus, discretion lives at every level of a department. An officer lets a speeder go with a warning, a supervisor lets an officer off with a warning about behavior, a detective chooses not to prosecute a domestic violence suspect where an ounce of marijuana is discovered on the premises, and a police chief chooses to suppress information about an activity or raid. In addition, discretion certainly exists between peers in the department, who may consciously or unconsciously influence others by their attitudes and arrest patterns. As another writer notes, "[S]ome law is always or almost always enforced, some is never or almost never enforced, and some is sometimes enforced and sometimes not" (Edwards, 2006). These differences may lead to outcries from the public, but they are all areas of discretion used throughout the department for various reasons.

In the patrol division, discretion can be used in any number of ways, as this paper has discussed. A patrol officer can choose to ignore a certain complaint, answering another that seems more important or dangerous, he or she can offer a warning instead of a ticket, or choose to arrest some one or write them a ticket. Those are all discretionary decisions. In the detective division, it can be even more relevant. A detective may decide not to press charges against someone because there is not enough evidence, or they can choose not to report evidence, such as small amounts of drugs, etc., because they would only clog the legal system that is already overcrowded and overworked. These are all discretionary decisions that should have little outcome on overall public safety and public perception, and they show how discretionary decisions occur on a daily basis throughout the department. They also show that discretionary decisions can be abused in the wrong hands, but can be a boon to policing in the right hands.