Police discretion is a very significant issue in matters that concerns criminal justice. There has been constant predicament between strict enforcement of the law and the spirit of the statute. Broadly, discretion can be described as an individuals’ ability to make decisions based on the principle of the course of actions. During training, laws officers are presented with possible situations that they are more likely to face during their execution phase. However, some of the situations presented are not comprehensive enough for the officers. Contrary to the examples given, police encounter intriguing situations that require their personal decision. The law does not cover all features and situations. This implies that the novel laws being enforced to permit officers to utilize discretion in the short run period takes care of the limitations found in the previous statute. There are also cases where the law is abstruse. The law makers may disregard diverse understandings of the law hence leaving individual to employ their discretion in making judgments. Police discretion is normally employed in circumstances that presented a variety of options. In order to undertake an option, a person is required to weigh possible solution before deciding to execute the best alternative. Other writers describe police discretion as the void in the midst of a ring that consists of rules and guidelines. On the other hand, law enforcers are not always supposed to exercise discretion. In some cases, departmental rules and work procedures restrict and disregard discretion in all situations. Discretion is bound by norms that include the professional, legal, social as well as ethical norms (Terrill & Mastrofski, 2002).
Police officers encounter different situations in their everyday work which they must address. These situations are not identical. The police officers make varying decisions depending on the prevailing condition and the nature and extent of damage.
The types of duties and work conditions encountered by the law enforcers necessitate the utilization of discretion. Normally, Police operate in a lonely environment characterized by minimized contact with the members of the community. Due to the nature of police work, decisions should be made instantly without input from other sources. The quasi-army is established on a bureaucratic structure that serves as a whole department. This is a system based on a unified chain of commands (Banks, 2004).
Police discretion is generally evident in a law enforcer’s decision to utilize legal approval. A law enforcer may exercise discretion by stopping a traffic offender, give a warning or arrest an offender. Discretionary of the lawful consent is covered under the utilization of force. It deals with the quantity of force to be used and utilization of the same as well as allocating tasks and time schedule to police officer’s. A good example is where a patrol officer who doesn’t respond to a call comes across a stuck motorist (Banks, 2004). Stopping to help the motorist would be part of his duty. However, the policeman can exercise discretion by either helping the motorist or not. Time consumed in helping the motorist depends on the kind of help. According to the law the role of a police office is to maintain law and order. Ideally helping a motorist who is stuck does not comprise matters of law and order. However, the decision by the police to help or not to help the individual is highly dependent on the urgency and gravity of the situation. The police officer is expected to operate on the basis of opportunity cost which will help in the determination of the best decision. Another form of discretion involves the activities performed by law enforcers in community policing. In other words, police discretion can be described in terms of objectives selection, choice of intervention techniques, decision to address different cases, investigative measures undertaken, field procedures adopted and the issuance of permits and licenses.
Police exercise discretion mostly in domestic violence and in traffic offences. In addressing home violence, they request social workers for help. They have regarded domestic violence as a confidential matter to be left in the hands of counselors who provides cooling off periods as well as social service referrals. Discretion is utilized in cases where parties involved in the violence are not willing to sit down and solve the issue. Parties are asked to separate for a few days in order to calm the anger. In case of traffic, officers may permit a driver escape scot free for failing to halt at a red light (Terrill & Mastrofski, 2002). The officer may argue that human beings are susceptible to make normal mistakes. The police can also utilize discretion for those drivers caught driving under the influence of alcohol and drug abuse. In such a case, the police may call a taxi driver to carry the victim and have the vehicle towed away. Other offence that may attract discretion includes racially motivated offenses committed by mentally disturbed persons as well as petty offenses such as homeless individuals stealing food from business organizations.
Internal and External Control Mechanisms
Exercise of discretion by the law enforcers has two control mechanisms namely, internal and external control mechanisms. These exercises have their own pros and cons. Unconstrained utilization of discretion may give rise to the deprivation of citizen rights. Strategies meant to control the practice of discretion are specific to the type of decision adopted. There are a good number of internal and external control mechanisms developed for police discretion to guide their work. The internal control features that influence discretion are laws and regulations made for the law enforcers. Some of the external control mechanisms incorporate statutes that controls the kind of people and situations polices officers encounter. In criminal justice, discretion mainly refers to the official acts by law enforcers based on individual’s judgment (Banks, 2004). it is possible for police discretion in law enforcement to result in some form of bias. this often affects the ability of members of the public to trust that a police officer will make sound judgment in different criminal situations.
Walker and Katz (2002) stated the true nature of edict goes as far as analyzing the implication of the constitutional text. Thus, it becomes difficult to implement the law as a result of the wide interpretation available concerning specific laws. However, communities may not agree on what comprises criminal acts. An instance is of the skid-rows zones (U.S. Nuclear Regulatory Commission, 2006). The procedure undertaken by most officers in addressing the skid-row issue as stated by Walker and Katz is one of the ways by which policed officers have been able to use their discretion in manipulating the law to propagate crime (2002). Under this kind of an approach, policemen make use of their discretion through permitting offensive acts in the skid-row zone to be through minimal police interventions. The officers may overlook such cases as drunkenness, drug abuse or even prostitution so that they do not increase to jeopardize the normal society hence leading to serious risks to the residents (Terrill & Mastrofski, 2002). The decision by police officers to act in accordance with a discretion that is in disagreement with the law may jeopardize community initiatives that are often aimed at the development of a society that is free of any crime. It is therefore important for discretions arising from police officers to be in accordance with the law and minimize the possibility of impunity not only among police officers but also among the civilian population.
Failure by the citizens to reach a consensus on what makes up the criminal acts or the kind of approach to be undertaken in addressing issues that concerns the community and the ambiguity of the law are considered as the advantages of discretion as it gives the policemen the ability to mould their official contexts (U.S. Nuclear Regulatory Commission, 2006). However, awareness of the contrary interpretation by the law makers and the citizens the officers are at liberty to make decisions hence capable of exercising discretion. Ambiguity comes about as a result of the construction of the language used and established to particularly allow execution of this discretion (Walker & Katz, 2002). As a result, it refutes the role of the legislature in the creation of laws that are simple to understand. This means that the general public is not adequately aware of the factor that leads to creating an offense hence infringing the law. The fact that policemen are all different and employ discretion differently also generates a problem to the community. This problem is attributed to lack of consistency in terms of the law enforcement apparatus that are employed by the policemen. Since the law enforcers normally act differently in all kinds of situations, it becomes hard for the public to identify the right behavior expected from officers. Consequently, police are uncertain about the expected behavior the policemen expect from citizens in such situations. To some level, this can result to lack of confidence between the two leading to unending conflicts. Lack of confidence in police officers by members of the public can be detrimental in the intentions of fighting criminal activities in different areas of the society.
According to Walker and Katz (2002), the drafting of policies and guidelines regarding the utilization of lethal power had a great impact in New York. Since the police department of NYC imposed a life security policy, the newly introduced policies minimized firearms discharges by about 30%. As other departments approved the same policies, there was a decrease of the amount of people killed by the police to half nationwide. Law enforcers have taken strides to minimize police utilization of discretion. This has been done through enforcement of laws that are strict thus necessitating the use of police sanction such as arrests for certain kinds of criminal acts. Typical crimes involving domestic violence, use of firearms as well as certain drug crimes are covered under the constitution (Walker & Katz, 2002). In the same manner, some departments employ policies that relate to cases of domestic disputes. Lack of claims in domestic violence in some cases necessitate that dispute be eliminated from the residence for the purpose of establishing a cooling down period. Societies especially business societies are also capable of establishing zero tolerance environments where all thieves are prosecuted by the aide of police officers. Most grounds differ with some of the control mechanisms. To an extreme extent execution of endeavor can impact the utilization of discretion. Identification of operation that needs quick decision making by the service men cannot change significantly through policies and guidelines. Training may improve quick action skills for officers (Walker & Katz, 2002).
So as to have full control of discretion, police officers may be required to follow the law to the later for each and every case they encounter. However, this is not the reality on the ground since some officers are not fair and well-suited in the community. Nevertheless, problematic issues associated with discretion require a control mechanisms that have laws and policies that restrict policemen from exploitation of discretion. Supervision of law enforcers may also serve as a control measure in addressing the misuse of discretionary actions (Walker & Katz, 2002). The law enforcers utilize their judgments in discretion in most cases. However, personal judgments may be impacted by numerous factors such as psychological health and the level of education. With police having the capability of momentarily deciding on the future of a person, it is necessary to test and approve their intellectual capacity. They have a high level of authority thus require skills to improve and defend their authority. Apart from aggregate-level community features, external control mechanisms influences on police discretion can be much more intentional. State laws concerning discretion may limit police usage of preference. These discretion control mechanisms have numerous weaknesses. For instance, most limiting state laws allow police to utilize their weapons in an extremely wide range of situations. Also the law is too indefinite concerning suitable and acceptable behavior by the law enforcers.
Police are restrained by the law to behave in a certain way because having much freedom may lead to negative effects to the community as well as the nation. It is incongruent to leave police to make crucial decision on their own. Some of them may get influenced or biased due to personal issues. Due to this, the government may end up loosing for its failure to prevent the acts before they happen. Discretion will also serve the community right in the sense that time will be saved when attending to emergency. Uncontrolled authority has brought dire consequences to the police force hence no government in the world would consider having an uncontrolled force. Personal decisions are susceptible to biasness due to the diverse opinion and views possessed by human beings. This infers that disagreements in certain issues may cause death, damage or loss of property. The reason behind this is that total freedom for armed forces leads to autocracy hence limits the freedom of citizens. In simple terms, the mandate to protect social wealth imposed on the police may be overridden by personal interest in case the law fails to control their actions. The use of guns to execute justice may attract legality issues regarding the nature of the offense and determination of the cause of action.
Banks, E. (2004). Working the Street: What you need to know about life on Wall Street. New York: Palgrave Macmillan.
Terrill, W., & Mastrofski, S. D. (2002). Situational and officer-based determinants of police coercion. Justice Quarterly, 19(2), 215-248. doi:10.1080/07418820200095221
U.S. Nuclear Regulatory Commission. (2006). Regulatory Guide 1.201: Guidelines for categorizing structures, systems, and components in nuclear power plants according to their safety significance. Washington, D.C.: U.S. Nuclear Regulatory Commission, Office of Nuclear Regulatory Research.
Walker, S., & Katz, C. M. (2002). The Police in America. In the History of American Police (6th ed., pp. 22-56). Boston: McGraw Hill.