The Discretionary Power of the Police

Transcription

1 The Discretionary Power of the Police

2 Discretion An official action by a criminal justice official based on that individual s s judgment about the best course of action. Discretionary power is limited by the law and administrative policy. Discretion is pervasive throughout the criminal justice system. The anomaly of police discretion Street level bureaucrats

3 Use and Misuse of Discretion Police discretion serves multiple positive functions. These included exercising professional judgment, effective use of resources, individualized justice, and development of sound public policy. Public concern is often centered around police abuse/misuse of discretion. Potential abuses include: discrimination, denial of due process, problems with police community relations, personnel management, and planning and policy development.

4 Types of Decisions Police Officer Make Patrol Decisions Types of patrol, level of force usage, decision to make an arrest. Order Maintenance Decisions Dispute resolution, social service referrals, dealing with special populations. Criminal Investigations Decisions How and which cases will lead to investigation and what resources will be used. Administrative Decisions Patrol style, criminal law enforcement, officer moral, public opinion.

5 Causes of Police Discretion Discretion is derived from several aspects of nature of police work. The nature of the criminal law Legal definitions are inherently vague. Reflects conflicting public expectations about illegal behavior. Extended use of the criminal law. The police working environment Absence of direct supervision. Limited resources Limitation on full enforcement of the law.

6 Factors Influencing Police Discretion Situational factors Seriousness of the offense, prior record, demeanor, etc Race and gender influences Driving while black Driving while female Police-Citizen Interactions Interpretation of police behavior as reactions to citizen behaviors. Individual characteristics Most studies have failed to find differences pertaining to the race and gender of police officers. Officers most likely to use force on members of their own race.

7 Factors Influencing Police Discretion (cont.) Departmental policies Policies constrain police behaviors such as use of force and criminal law enforcement. The neighborhood environment The use of force and likelihood of arrest have been found to be influenced by community factors. Organizational style of the police Emphases of the watchman, legalistic, and service styles. Local political culture Informal influence of the community on the behavior of police officers.

8 The Myth of Full Enforcement The police commonly contend that they fully enforce all laws. This myth is perpetuated because: Police public image of authority. Protect ideal of equal protection of the law. Protect departmental decisions and policies. Legal requirements for full enforcement. Avoidance of close review of officer performance.

9 Strategies for Controlling the Use of Discretion There are three major strategies for controlling police discretion. Abolishment of discretion Many have argued that the police do not have the legal authority to nullify the criminal law Enhancement of professional judgment Screening, training and socializing professional police officers. Bureaucratic control The criminal justice system offers a means for reviewing and evaluating police use of discretion.

10 Rule-Making and Police Discretion Written policies have emerged as the primary form of controlling police discretion. The purpose of rules Specify what an officer must do in certain situation. Specify what an officer must not do in certain situation. Specify where an officer must properly exercise discretion.

11 Problems with Written Rules Written rules are contained in standard operating procedure manuals; there are limitations of these manuals. Overemphasis of trivial issues. Reflect problems or screw-ups in the prior history of departments. Limitations of formal rules Impossible to cover every situation. Rules may encourage lying/code of secrecy. May prove to complicate situations. May create a negative departmental atmosphere.