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An Evaluation of the Role of Discretion in Policing

As a recent development in criminal justice scholarship, researchers have begun

to focus upon the level of discretion that police officers have in enforcing the law.
While administrators are often bound by bureaucratic regulations, law
enforcement professionals at lower levels of the organization possess great
leeway in the manner in which they perform their jobs. Because of the power
that police have to deprive citizens of their life and liberties, the role of discretion
in policing is of great concern to scholars and the public alike. At worse, too
much discretion can allow for abusive behavior that neglects the interests of the
public and undermines the law. However, when used appropriately, police
discretion can enable police officers to effectively serve the public by enabling
officers to make wise use of public resources, protect the public safety, and
divert vulnerable populations from the criminal justice system.

Police discretion is a phenomenon that is integral for understanding how police

work is conducted. According to Pond (1999), discretion refers to the selective
enforcement of the law by law enforcement officials (p. 94). Even in cases where
it is clear that a crime has been committed, police officers often use their
discretion in order to determine whether the violation will result in criminal
proceedings (1999, p. 94). Through discretion, law enforcement officials utilize
their personal judgment in order to assess a situation and determine the manner
in which they should proceed (1999, p. 94). Because law enforcement agencies
are often subject to a certain degree of bureaucratization, discretion is likely to
be utilized departments that receive less oversight. As Pond notes, discretion
increases further down the hierarchy of an organization where officers receive
less supervision and where lower visibility enables police to depart from
enforcing the law (1999, p. 95). Different departments can still utilize discretion.
For example, a detective division can determine how much time is spent
investigating a particular case or what resources will be devoted to the
investigation. However, because of their relative autonomy, patrol officers often
exhibit the highest degree of autonomy and enjoy the greatest level of discretion
in their daily operations.

As Walker (1993) notes, there are several decision points that patrol officers
encounter where their discretion can greatly impact how the law is applied. The
first area where discretion is commonly utilized involves determining whether an
arrest will be made (1993, p. 23). In many cases, an officer can decide to give
an individual a warning or even overlook a violation if they believe that the
infraction committed was insignificant (1993, p. 23). Second, an officer can
utilize discretion by determining what charges will be filed against a suspect
(1993, p. 23). For example, an officer can change the nature of the charges that
a suspect faced by choosing a lesser but related charge for a more serious

violation (1993, p. 23). Additionally, police officers can determine how quickly
they will arrive to a scene after receiving a dispatch call or what level of force
they will use to subdue an uncooperative suspect (1993, p. 23). Each of these
choices has a significant impact on the safety of the public and the rights of the
individual suspect.

Because of the potentials for abuse, police discretion has received significant
criticism. A Walker highlights, the March 3, 1991 Rodney King beatings that were
conducted by Los Angeles police officers highlighted the power that police
officers hold to severely violate the rights of suspects when they abuse their
discretion (1993, p. 21). Subsequent investigations revealed that excessive force
was a rampant problem in the Los Angeles Police Department that was enabled
by the lack of departmental oversights and a culture that was permissive to
police brutality (1993, p. 21). Further, Pond asserts members of society
disproportionately receive the benefit of the doubt when police exercise their
discretion. According to the power model of criminal justice, the use of discretion
tends to promote the interests of the advantaged in society (1993, p. 91). The
power model is supported by research demonstrating that the majority of
individuals who are detained by police officers for crimes are from disadvantaged
socioeconomic groups (1993, p. 91). Young unemployed males and blacks are
most likely to be incarcerated for their crimes (1993, p. 91). Thus, when police
discretion is misused, it can lead to inequities in law enforcement among
different socioeconomic groups in society and police conduct that violates the
Constitutional rights of citizens.

Yet, despite the drawbacks of police discretion, those who support providing
police with leeway argue that it is integral to their jobs. As Adlam (2003) asserts,
Discretion is the art of suiting action to a particular circumstances. It is the
policemans daily task (p. 73). Further, he asserts that discretion is essentially
utilizing common sense and sound judgment in order to appropriately respond
to policing situations (2003, p. 73). As Adlam argues, policing is similar to other
professions, such as the legal or medical profession, where it is necessary to
enable practitioners to utilize their training and expertise to determine how they
should perform their work (2003, p. 24). While their should be a balance
between holding professionals accountable to the laws supported by the public,
the allowance of discretion also acknowledges that police are professionals who
can also determine the best manner to preserve the public interest.

There are many cases where the difference between the reality of law
enforcement and the actual practice of law enforcement serves the public
interest. For example, the utilization of discretion in arrests can prevent the
criminal justice system from being overwhelmed by defendants who committed
petty offenses (Pond, 1999, p. 94). Also, in cases, such as determining whether

to pursue a suspect through a high-speed chase, the use of discretion enables

law enforcement officers to also protect the safety of innocent bystanders
(Walker, 1993, p. 24). Further, while improper use of discretion can enable police
officers to form biases that disadvantage certain groups of people, proper use of
discretion can be utilized to protect vulnerable members of the public. As Smyth
(2011) asserts, police often act as gatekeepers to the juvenile justice system
when they interact with young criminal offenders (p. 153). By utilizing
discretionary powers, police officers often have the ability to handle delinquency
and other minor offenses in a constructive manner rather than charging the
juvenile with a crime (2011, p. 153). Thus, while discretion is considered to be
problematic, there are many cases where the ability of the police to use their
judgment is necessary to preserve societal interests.

In order to maximize the benefits of police discretion while reducing its

detriments, regulations should be adopted to prohibit conduct that clearly
violates the rights of citizens. As Groenveld (2005) notes, discretion is likely to
be exercised in situations where fewer formal rules are established for handling
the particular situation (p. 1). Further, administrative rulemaking is the most
effective method of restricting discretionary behavior (2005, p. 5). While police
should be able to determine the extent to which they arrest and charge suspects
of petty crimes, acts such as excessive force should be curtailed through
departmental policies.

Though police discretion can be adapted to some degree in each division of a

police department, the role of discretion is especially critical to the patrol
division. Because patrol officers experience less supervision and higher
interaction with the public, the decisions they make have the strongest affect on
how the law is enforced in the public sphere. While police discretion has the
potential to enable abuses and inequities in law enforcement, this same power
can be utilized to preserve the public interest by reducing frivolous charges and
constructively engaging vulnerable populations. Thus, reform efforts should
maximize beneficial uses of discretion while carefully restricting discretionary
measures that might undermine the rights of citizens.