Police Process Dae-Hoon Kwak Michigan State University CJ 335 Summer 2006 Lecture 12 Lecture 12 Police Discretion 1
Outline for the lecture Define police officer use of discretion Explain the sources of police discretion Outline factors that influence discretionary decision-making Understand strategies for controlling discretion Comprehend how discretion is affected by administrative rule making 2
Discretion in Police Work Definition - POs routinely make critical decisions involving the life and liberty of citizens (e.g., domestic dispute arrests, mental health commitments, traffic enforcement, juvenile court referrals, and deadly force.. etc. ): DISCRETION - Definition: an official action by a CJ official based on that individual s judgement about the best course of action 3
Discretion in Police Work (cont.) Why is it important? - Police determines the system s workload (i.e., Gatekeeper of CJ system) - The misuse of discretion by POs can result in abuses of citizens or ineffective management of police dept. Law/Policy Exercise Abuse of Dis. :Illegal 4
Discretion in Police Work (cont.) Limits on the Exercise of Discretion - Police discretion is governed by legal factors (e.g., supreme, state court decisions, State law) and Admin. factors (e.g., dept. policy, supervision) Discretions in CJ system - Series of discretionary decisions: arrest through prosecution, trial, sentencing, and parole release 5
Aspects of Police Discretion Potential Abuse of Discretion - Discrimination (vs. disparity) - Denial of due process - Police-Community relations problems - Poor personnel management - Poor planning and policy management Positive Uses of Discretion - Proper exercise of professional judgement - Effective use of scarce resources - Individualized justice - Sound public policy Best approach is not to eliminate it, but to control it 6
Decision Points and Decision Makers Patrol Officer Decisions - To patrol an area more intensively than normal - To stop, question, or frisk a suspect - To write a crime report, make an arrest - To mediate a domestic dispute rather than arrest.. etc Detectives Decisions - To stop investigating a crime, to seek a warrant for a search.. etc Police Manager s Decisions - To adopt CP or POP, to give high priority to traffic law etc. 7
Underlying Sources of Police Discretion Nature of the Criminal Law - Definitions of crimes are inherently vague - The police has to determine whether an incident fits the definition provided by law Conflicting Public Expectations - The law reflect conflicting public expectations about what behavior should be illegal - This criminalizes much behavior that some people regard as acceptable forms of recreation and officers are caught between these conflicting expectations and use their discretion about the best course of action 8
Underlying Sources of P. Discretion (cont.) The Work Environment of Policing - No direct supervision - Police-Citizen encounters occur in private places, with no other observers present, therefore, officers have opportunity to choose whether course of action they prefer (i.e., policing has been described as low-visibility work) Limited Police Resources - PDs are caught between the broad scope of the Criminal Law and their own limited resources - Full enforcement is impossible 9
The Social Organization of Arrest Black (1971), the first systematic study of police Method - Direct observation at Boston, DC, and Chicago PD - Focused on adult suspects and patterns of arrest in police encounter Findings - Most arrest situations arise through citizen rather than police initiative - Arrest practices sharply reflect the presences of citizen complainants 10
The Social Organization of Arrest (cont.) Findings (cont.) - The police are lenient in their routine arrest practices - Strong evidence is more likely to make an arrest - The probability of arrest is higher in legally serious crime situations than those of a relatively minor nature - The greater the rational distance between a complainant and a suspect, the greater is the likelihood of arrest - The probability of arrest increase when a suspect is disrespectful toward the police 11
Factors Influencing Discretionary Decisions 1. Situational Factors - The more serious crime, the more likely the officer is to make an arrest Strength of Evidence - The stronger the evidence, the more likely to arrest Preference of the Victim - Arrest is more likely when the victim or complaining parts asks for an arrest (vs. Mandatory arrest for DV) 12
Factors Influencing Dis. Decisions (cont.) Relationship between Victim & Suspect - Arrests are more likely when the victim and offender are strangers, and are least likely when the two parties are married Demeanor of the Suspect - The probability of arrest increases when a suspect is disrespectful toward police Characteristics of the Victim - POs discounted the allegations of certain crimes whose life styles was nonconformist 13
Factors Influencing Dis. Decisions (cont.) Race, Ethnicity, Gender of the Citizen - Black suspect, white victim (especially PC cases) - Behavior of a female victim - There is no conclusive research in this area about arrests decisions based on race - There is some evidence that women were treated differently if they conformed to traditional role stereotypes Behavior of the Citizen (P-C C interactions) - Officer actions are heavily influenced by what citizens do, or how officers perceive their attitudes and actions (e.g., force situation, no resistance vs. violent) 14
Factors Influencing Dis. Decisions (cont.) Characteristic of the Neighborhood - High crime or low crime areas - Officers are more likely to make arrests and use deadly force in low income neighborhoods than in higher income areas Characteristics of the individual officer - Individual officers gender, race, and education.. etc. - Do not appear to have a major influence on police behavior 15
Factors Influencing Dis. Decisions (cont.) 2. Organizational Factors Official Dept. Policy - A powerful influence over police discretion (e.g., Mandatory arrest policy for DV) Informal Org. Culture - It is more the impact of values and traditions and values that are communicated informally (e.g., subculture) - Styles of policing (James Q. Wilson): watchman, legalistic, and service 16
Factors Influencing Dis. Decisions (cont.) 3. Environmental Factors Local Political Culture - This might be influenced through communications from elected officials or other leaders and not policy 17
Control of Discretion The Need for Control [e.g., TASER] - Virtually all experts agree on the need to control police discretion in order to control abuse - If police admitted they do not arrest everyone, it would raise serious questions about equal protection of the law - Most States require the police to enforce all laws fully - Davis/Goldstein: the first step toward controlling police discretion is admitting that is exists, that it can create problems, and that control is necessary 18
Control of Discretion (cont.) 3 Basic Strategies - Abolishing Discretion a. It was illegal and should be abolished (e.g., mandatory arrest/sentences) b. However, discretion is inevitable and desirable (can often be used for positive purposes) - Enhance Professional Judgement a. Like Dr s, lawyers: control thru screening (admission standards), training (long), and socialization b. Once they are Dr s s there is little day to day supervision c. police should be granted similar degree of freedom to make professional judgements 19
Control of Discretion (cont.) 3 Basic Strategies (cont.) - Administrative Rulemaking (thru court decisions, written policies) a. Seeks to guide the exercise of police discretion through written rules and the requirement that officers complete written reports on how they handled situations b. Specify What an officer must do in certain situations, what he or she may not do in those situations, and where an officer may properly exercise discretion 20
Control of Discretion (cont.) 3 Basic Strategies (cont.) - Administrative Rulemaking (cont.) a. Example: pursuit policy Safety is primary consideration Tell when to pursue (e.g., felony not traffic) Tell how to pursue (no shots, only up to 15 mph over) Supervision (Sgt has ultimate decision to terminate) b. Example: force continuum 21
Control of Discretion (cont.) 3 Basic Strategies (cont.) - Objectives of Administrative Rulemaking a. Confining: Fix boundaries (i.e., when you do it and when you can t t do it) b. Structuring: Open plan (i.e., everyone (public) should be aware of policy: a rational system for developing policy) c. Checking: Decisions reviewed (e.g., discharge of weapon) by someone else 22
Control of Discretion (cont.) 3 Basic Strategies (cont.) - Advantages of Administrative Rulemaking a. Provide direction to the officers b. There can be no dispute about official policy (it s s codified into SOP) c. It is more effective than other means d. Consistency ensures greater chance of equal protection - Impact of Administrative Rulemaking a. Deadly force: yes, worked (e.g., NYPD) b. Pursuit: yes, worked (e.g., Alpert s s study) c. Domestics: no, did not work 23
Control of Discretion (cont.) 3 Basic Strategies (cont.) - Limits of Administrative Rulemaking a. Can t t cover everything in writing before it happen b. Can encourage evasion and lying c. Complex written rules may only make the situation worse, creating more uncertainty for the PO rather than less d. Elaborate rules may only create a negative atmosphere in the dept. (do little work as possible) 24