Police Discretion: Training, Judgment, and Use of Force

Introduction: The Problem of Police Discretion

For several decades it has been established that police officers routinely exercise discretion in carrying out their duties (De Lint, 1998). Through the 1960s, officers were expected to use "common sense," with little attention paid to analyzing situations where discretion was called for or to applying specific training to improve the quality of judgments made in such situations. Obviously, police will always have to use some degree of 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 only marginal improvement at best (De Lint, 1998). While no one opposes having well-educated police officers, an alternative approach is to provide structured training in discretionary decision-making. Today's police officers therefore receive much more specific training on when to discharge their weapons and how much force to use when arresting a suspect. This in turn has reduced incidents that would be considered abusive by contemporary standards. Cases such as the beating of Rodney King stand out precisely because virtually everyone today agrees that no more force should be used than is necessary to subdue a suspect.

There is a mythic dimension to the question 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 judgment within their ranks. The "blue culture" remains a problem when investigating instances where an officer's exercise of individual judgment may not have been appropriate. In addition, the public holds widely 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 grant them the greatest amount of discretion, even though that may lead to excesses (Wu, 2004). Liberals, as a generality, tend to distrust police more, want more restrictions on what officers can and cannot do, and sometimes view even necessary police actions as coercive (Wu, 2004). All of this creates an atmosphere that leaves officers uncertain about what they should do, and when, and under what circumstances.

The best solution for police forces may be "judgment drills" (Kelly, 2003), in which officers consider a set of facts in hypothetical circumstances, weigh what actions they might take, and discuss the ramifications of each choice. These drills should be conducted both with new recruits and as refreshers for experienced officers.

It is unrealistic to think that police officers will never exercise personal judgment or discretion. Even if it were possible to anticipate every conceivable circumstance under every conceivable condition, no human being could study them all in advance, memorize the "right" response for each variable, and then execute the single correct answer — sometimes within a split second. Some situations will always call for discretionary judgment on the part of police officers.

Public Substance Abuse and Neighborhood Policing

Some examples found in the literature seem more clear-cut than others. One publication suggested that if an officer saw someone walking down the street smoking a marijuana cigarette, the officer might be able to exercise some discretion regarding whether to make an arrest, depending on the neighborhood (De Lint, 1998), and that when officers lack 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 witness such conduct being overlooked by a police officer.

When William Bratton, former New York City Police Commissioner, was interviewed, he argued that different neighborhoods might want laws enforced differently, and that this was the basis for community policing (Newfield & Jacobson, 2000). He said that different communities want different types of crime made a priority. Using Harlem as an example, he noted that in 1994 and 1995 the department had to address drug dealing, prostitution, gambling, and other public crimes. He also said that after public street problems were brought under control, police came under pressure to make more arrests — which, to Bratton, made little sense (Newfield & Jacobson, 2000). However, it is hard to imagine any neighborhood willingly tolerating those crimes when they occur in full public view. If police target drug dealing in one neighborhood more than another, charges of racism will inevitably follow. While there may be a place for police discretion, it should not fall to individual officers on the street to decide which public crimes are ignored and which are addressed.

Racial Profiling and Traffic Enforcement

Any time a police department uses racial profiling as part of a process for deciding whom to stop, that practice requires judgment and discretion on the part of the officers involved. While departments try to be as precise as possible, they may operate on the assumption that one sex over another, one race over another, or one type of vehicle over another is statistically more likely to be transporting drugs for sale. Bratton argues that such tools remain important and that profiling actively discourages crime. He suggests that if crime has declined partly because of profiling and that practice is abolished, within five years all the gains will be lost (Newfield & Jacobson, 2000). He used the example of Staten Island, a borough of New York City, where only 5% of residents are Black but 50% of those stopped by officers are African American. He argues this is justified because the only significant high-crime area on Staten Island is concentrated in public housing projects whose residents are largely African American, making it — in his view — a reasonable basis for heightened suspicion (Newfield & Jacobson, 2000).

Many people would object to this policy. Rather than stopping large numbers of individuals based solely on race, officers should operate according to specific profile guidelines focused on suspicious behavior. Race alone should not be a determining factor. If 50% of those stopped are Black, then 50% are not, which raises serious questions about the validity of the practice. Departments should analyze the outcomes of these stops to determine which conditions actually make stopping individuals a productive police activity.

Police officers also routinely choose whom to stop for traffic violations and how to handle those stops once initiated. For instance, officers are fully justified in pulling over any driver who fails to signal before changing lanes. However, if they did so consistently, they would have little time for anything else. They would frustrate drivers, who would view such stops as trivial, and while an officer was writing a ticket for a missed turn signal, multiple speeders might pass by — posing serious risks to other drivers and themselves. Some departments will not stop a driver unless the vehicle is traveling more than ten miles per hour over the speed limit, while some small towns have reputations as "speed traps," using abrupt and unexpected reductions in posted speed limits to generate municipal revenue.

No doubt traffic officers are instructed to overlook a simple failure to signal in most cases, but when that infraction is combined with reckless driving — such as tailgating, repeatedly changing lanes at high speed in congested traffic, or passing on the shoulder — a different decision is appropriate. In all of these cases the officer is exercising discretion. Departments should establish clear standards about which traffic violations will receive priority, freeing officers to focus on serious matters such as reckless driving and road rage incidents.

Bibliography

De Lint, Willem. 1998. "Regulating Autonomy: Police Discretion as a Problem for Training." Canadian Journal of Criminology, July.

Newfield, Jack, and Mark Jacobson. 2000. "An Interview with William Bratton." Tikkun 15, July.

Kelly, Sean F. 2003. "Internal Affairs: Issues for Small Police Departments." FBI Law Enforcement Bulletin, July.

Wu, Steven. 2004. "Considerations." Accessed via the Internet, April 17, 2004. http://www.scwu.com/news/