Introduction
Police discretion is one of the most important powers that a police officer can be vested with. It is the hallmark of a police officer’s role, such that without it the officer is ill-equipped to carry out their functions. This paper is an investigation into the meaning of police discretion. It will further highlight the benefits of police discretion to the role of the police department and the negative consequences of abusing this power. Finally, the paper will look into the pervasive nature of police discretion and how it is exercised at different levels of the police department.
Police Discretion: What is it?
Police discretion is a power that has been considered to be at the heart of a police officer’s job. It refers to how police officers are called upon to exercise their judgment when they are deciding whether or not to arrest a particular person or when they are carrying out some other function (Miller & Gaines, 2008). Scholars of policing have argued that discretion is vital in every level of the police department, from the commissioner to the lowest patrol officer. However, others have argued that it is the patrol officer, ironically, who exercises the widest amount of discretion because his work requires him to constantly make decisions as to whether or not to arrest a particular wrongdoer (Miller & Gaines, 2008). Police discretion has been justified because, in the exercise of a police officer’s duty, they are more often than not far removed from their supervisors; therefore, they are forced to make judgment calls in the situations that they find themselves in (Miller & Gaines, 2008). In essence, without discretion, the whole machinery of the police department would stall because police officers would be unable to carry out their duties. Discretion, therefore, enables them to do their jobs without having to wait for the orders or instructions of their superiors in trivial matters which can readily be decided on the spot.
Positive uses of discretion
Different scholars usually identify various benefits of the use of police discretion. Among these are the following (Bronnitt & Stenning, 2011):
- It has long been accepted that no legislature in the world has succeeded in enumerating all the conduct that should be considered criminal and how this conduct ought to be punished. Discretion, therefore, steps in and covers even those actions which, although not criminalized by statute, are wrong and should be punished. By doing so, the police officer ensures that no crime goes unpunished merely because it has not been provided for by existing legislation.
- It has also been argued that discretion is made necessary by the limited resources that are available to the criminal justice system. Letting minor offenders go off with a warning, for example, helps the police to ensure that the jails will be less crowded, which further aids in easing the pressure on the already limited resources.
- Also, scholars have asserted that in some instances, the strict application of the law would lead to harsh results. For example, most police officers are often lenient with first-time offenders. It is thought that sometimes, a word of advice would go a long way in achieving the rehabilitation of a wrongdoer than an arrest would.
- Finally, scholars have also argued that the exercise of discretion leads to a more humane approach to policing. This, in turn, builds the community’s trust in the police department and also enables the department to get wide public acceptance.
Effects of abuse of discretionary powers
Police discretion is at the risk of being abused because of how it is exercised. The elements that come into play when exercising this discretion have been well documented, and they include subjective factors like the police officer’s belief system, background, and even personality (Miller & Gaines, 2008). These elements make police discretion a highly volatile power that cannot easily be limited or regulated. When police discretion is abused, it can give rise to undesirable results like the following (Champion, 2001):
- The wrong exercise of police discretion can lead to injustice where it is not applied uniformly to all offenses. For instance, a police officer may allow one wrongdoer to go with a warning and then decide to arrest another wrongdoer for committing the same offense. In cases such as these, the use of discretion leads to unjust outcomes because ideally, the law is supposed to apply uniformly and equally to all individuals.
- Police discretion can also be abused to reinforce and perpetuate a police officer’s bias. By its very nature, police discretion allows a police officer to discriminate between offenders during the exercise of his duty. This may result in a situation where the police officer discriminates arbitrarily or according to his prejudices e.g. against a particular race, sex, religion, ethnicity, etc. For example, some police departments have been sued for charging more African Americans than white people with traffic infractions.
- Some authors have also feared that police discretion may breed and nurture corruption within a police department. Corruption usually arises as a result of misuse of certain powers and also, not upholding personal integrity. When it comes to police discretion, a police officer may choose to use this power to harass and ask for favors from violators in exchange for not arresting them. This can easily be done because there is usually no authority that is exercised over a police officer’s discretionary power.
Can the police department exist with a ban on police discretion?
I do not think that a police department would be able to function properly without the power of discretion. It has been argued that police discretion is what aids the police officer to continue doing his/her job even when they are confronted by gray areas that have not been provided for in the law (Kinsey, 2010). Without discretion, a police officer would not be able to function if he/she comes across one of these situations and this would lead to inefficiency in performance. Furthermore, this power is also important because it ensures that minor violators are kept away from jail cells where minor offenses can quickly graduate to more serious crimes (Kinsey, 2010). Therefore, discretion is vital to the exercise of a police officer’s duty, and if it is banned, it will stall many of the operations of a police department.
How discretion operates at various levels of the police department
As it has been stated earlier, police discretion applies to all levels of the police department, from the Police Commissioner to the patrol officer. The patrol division has been said to exercise the widest discretion because they are the ones who conduct most of the arrests. They are called upon to exercise their judgment when deciding whether or not to give a traffic violator a ticket or whether to let them go with a warning (Miller & Gaines, 2008). Other instances are also where they are dealing with juvenile offenders. In these situations, they choose whether or not to give them a warning or to arrest them. In the detective division, discretion is usually necessary because it enables the detectives to decide which leads to follow in a particular case and which ones to abandon. Detectives can also use the experience that they have gathered on the nature of criminals to determine whether a particular activity or a person is a danger to society and also to take investigative and preventive measures to make sure that it does not occur (Miller & Gaines, 2008).
Conclusion
This paper has shown the importance of police discretion. It has also shown that police discretion is a power that can either be well used or misused depending on the character of the police officer that is exercising it. Even though it is very unstable and not amenable to regulation, police discretion should not be banned because it is the oil that keeps the machinery of the police department running. As it were, without this power, most police officers would find themselves unable to exercise their judgment in the carrying out of their functions thereby making them less effective. Finally, the paper has also shown that this power is pervasive and is exercised at all levels of the police department. This merely goes to prove and underscore its importance in the discharge of every police officer’s duty. From the discussion, it is evident that a police department would not be able to function properly if a ban was placed on police discretion.
References
Bronnitt, S., & Stenning, P. (2011). Understanding discretion in modern policing. Criminal Law Journal, 35, 319-332.
Champion, D. J. (2001). Police misconduct in America: A reference handbook. Santa Barbara, CA: ABC-CLIO Inc.
Kinsey, R. (2010). Discretion is the measure of a police officer. The Ann Arbor News. Web.
Miller, R. L., & Gaines, L. K. (2008). Criminal justice in action. Belmont, CA: Cengage Learning.