Critically analyse the problems involved in Police use of discretion - Essay Example

?Critically analyse the problems involved in Police use of discretion? Introduction In simple terms the use of discretion by police refers to their action and ability to choose when to intervene and when not to intervene in the enforcement of law. Reiner regarded discretion as a particular tool in police organisation to be used by officers at the very ground level who are operating away from the immediate supervision of management1. This paper shall critically analyse the problems involved in the police use of discretion. It shall specifically discuss the practice of ethnic and other subjective considerations in routine stops and searches, the evaluation of domestic violence incidents, and similar police activities. The use of discretion is far greater in the police, even at their lowest levels, as compared to other organizations. This means that the constables in police enjoy more discretion than any other organisation even in police organisation. This is because the constables have direct interaction with the public while policing and patrolling2. Issues have now come up in relation to police officers and their need to apply discretion in their activities. Various factors have to be considered in order for the police to decide how much effort is needed in order to enforce specific laws which help control lawlessness. It is also important to note how a comprehensive police guidance detailing the manner of discretion which may be applied in specific circumstances can actually be insufficient for police officers to apply in order to avoid abuse of discretion. In these cases, it is difficult to include all the scenarios where discretion may be utilized in a single book. Moreover, even racial discrimination against racial and ethnic minorities may lead to a misuse of discretion. Nevertheless, according to Goldstein, there are no set rules or even a rule-book to follow for police officers to follow in handling police encounters3. Police officers cannot also be instructed on how to handle specific situations because most of their activities are part of routine policing where they often work away from supervisory authorities. Body There are various issues which are seen with the use of discretion. One of the issues is based on the fact that police officers may not have as much experience in policing and this may sometimes lead them to misuse their discretion in the apprehension of suspected criminals4. Moreover, their discretion may be affected by factors which include the inappropriate use of subjective and demographic factors to impact on their decisions as police officers. These factors may include racial or ethnic minority and in some cases, even gender. Newburn and Reiner discuss that the pattern of police discretion which lead to issues in its application is fashioned by different elements including class, race, gender, and age5. These factors often cause society to manifest various responses to police officers. Vulnerable people and the minority groups are often subjected to the unfair applications of police discretion. Studies establish that this discretion is often abused among young, black, lower class, and among males6. Patrolling among police officers on these individuals often include strict surveillance which often leads to abuse of discretion. This negative approach in the use of discretion often causes a very negative approach against the police. In a study by the Home Office, black people have a higher likelihood of being pulled over by the police officers for routine stops and searches7. Police officers seem to be highly influenced by the stereotypes about black people being criminals or offenders. In a discussion by author and criminal analyst Frank Remington, he acknowledged the fact that police officers must have a significant role in moulding and establishing a proper law enforcement process for the general population8. He compared the Federal Trade Commission, which is an administrative agency who has the responsibility of developing enforcement policies, and the local police departments who have a similar role9. This thought process is a significant departure from the previous thoughts about policing. Legislatures and city council officials established the laws and the police officers were tasked with the implementation of these laws. Many police officers have been brought up on the idea that their job was to implement the laws; and therefore, they were tasked with arresting law breakers. This was the simplest explanation for their job. Based on Remington’s views on police work, the police officers are viewed also as administrators for the city government whose work is based on the use of discretion10. This discretion is one seen in the executive department, and at most levels of the police organization. Remington’s views is based on studies carried out in the 1950s and during the 1950s and 1960s, the surveys of police officers and criminal agencies were based on official reports and statistical data11. These police surveys were mostly carried out by police consultants and these surveys mostly considered the extent to which local police officers considered reform models for policing, most especially their observance to organizational and administrative principles. However, in these surveys, the actual work of the police was not seen by the public. Discretion has also been established in the past as a concept used at different levels of criminal justice organizations. The general public also had an inaccurate portrayal of police work with their understanding of police making arrest decisions on the basis of whether or not a law has been violated. Moreover, the low-level decision-making by personnel in the light of practical and real-life situations was seen as a major consideration in the control of crime and in capacity of criminal agencies to solve crimes. This was seen among police officers, as well as prosecutors and other personnel. Policies of criminals in criminal justice agencies were seen to have a significant impact on criminal justice agencies12. Police officers make decisions on a daily basis on the appropriate application of their discretion. Discretion is a major part of the decision-making process for police officers as they make daily decisions on situations that they encounter. Discretion however is often a subjective process and may be affected by the police officer’s personal bias13. One of the more significant issues seen in the application of police discretion is the fact that racial profiling often impacts negatively on the police discretion14. Law enforcement officers are often questioned on their use of discretion, most especially on their treatment and their targeting of the minority and ethnic populations. In the US, the passage of strict immigration laws in Arizona establishes the impact of these issues which relate to the credibility of police officers15. Many citizens and critics of this law believe that this is a law which would open the doors to abuse of discretion among police officers as immigration has now been considered a criminal offence. This law also allows the police officers to impose their discretion on individuals based on how they look – on their Hispanic looking features which may lead to the conclusion of their illegal status in the US16. Various incidents throughout the years have been seen which demonstrate racial profiling and the abuse of police discretion. In the case of Dr. Elmo Randolph, a black American dentist who usually commuted from Bergen County to his office in Newark, New Jersey, he was stopped 50 times during one of his commutes. He drove well within the speed limit and so he was never issued a ticket17. Moreover, troopers approached his BMW and always requested for his license and registration; he was also asked if he had any drugs or weapons in his car. Randolph’s only ‘crime’ in this instance was that he was driving the wrong car – one which did not fit the stereotype about black Americans. Travelling in the wrong neighbourhood can also cause African-Americans to be unfairly judged and for the police discretion to be abused. Police officers in fact have been known to stop African-Americans passing through predominantly white neighbourhoods because they believe that these people do not belong in this neighbourhood and may be involved in criminal activities in the area. In relation to petty traffic violations, which may involve “under-inflated tires, failure to signal before switching lanes, speeding less than 10 miles above the limit”, there are violations which are also vulnerable to abuse of discretion and which may be impacted by racial biases18. In the case of Robert Wilkins, who was a public defender in DC, on a return trip from a funeral in Ohio, he and some relatives rented a Cadillac. In Maryland, they were stopped for speeding while doing a 60 in a 55-mph zone. They were also forced to stand in the rain while their rental was searched by police officers and by drug-sniffing dogs. No drugs or weapons were found19. In the Wilkins case, police officers displayed abusive behaviour and in Randolph’s case, the number of times he was stopped was clearly abusive. And these attitudes and behaviour all imply the general liberties which are taken by police officers in implementing the laws. Their actions are very much dictated by their racial biases and stereotypes against blacks, Hispanics, and other racial minorities. Stereotypes include the fact that blacks are likely to be arrested for drugs, illegal weapons, and violent activities; Hispanics are likely to be illegal migrants and also involved in drugs and gang activities; similar stereotypes also apply to Asian minorities20. In effect, these minorities are more likely to be pulled over for routine stops and searches than their white counterparts. Racial profiling is also very much apparent in the UK, as based on a report by Townsend, in England and Wales, black people are 26 times more likely to be stopped and searched by the police21. Findings also suggest that blacks and Asian Britons are often unfairly targeted by the police for stops and searches. The conduct of these stops and searches are based on Section 60 of the Criminal Justice and Public Order Act of 1994, an act which was basically introduced as a means to deal with hooligans and to serious threats of violence22. In applying this law, an assessment by the London School of Economics and the Open Society Initiative reveal that there are about 60 searches for every 1000 black people, as compared to 1.6 for every 1000 white people23. For the Asians, they were 6.3 times more likely to be stopped, as compared to their white counterparts based on a 2008-2009 survey of the Ministry of Justice24. Data also reveals a significant increase in the stops and searches for ethnic minorities in England and the Wales area. Experts point out that the police officers in London seem to be using a power which has few safeguards and a lot to do with personal and subjective discretion25. There is much risk for stereotyping, an act which is likely to cause an alienation of affected individuals. New drafts from the Home Office Guidance for police officers reveal that stops and searches can be based on ethnic origin26. This new provision brings to mind the major possibility of discriminatory practices against ethnic minorities, one which is even supported by the law. Researchers at the Open Society Justice Initiative also reveal that Britain showed the highest rates internationally for race gaps in the stop-and-search activities27. This used to be occupied by Moscow Metro where non-Slavs were stopped 21.8 times more than the Slavs. In the Paris Metro, those who were likely to possess Arab features had the higher likelihood for being stopped, as compared to their white counterparts28. The Open Society Justice Initiative indicated that even with differences in methodology, the race gaps seen in Britain has still indicated the biggest gap internationally. Necessary safeguards on the use of police discretion during these stops and searches have been suggested by the Mannheim Centre for Criminology in order to decrease ethnic tensions29. The discretion used by the police weighs in heavily on their attitudes about certain races and ethnic groupings. Current stereotypes already label blacks and other minorities to be more likely inclined to participate in crimes and other illegal activities. This lumps all the blacks and other ethnic minorities into one category – unfortunately, a category which makes them vulnerable to stops and searches. In effect, there is already a racial bias against them, even before they commit a crime and even when they do not actually commit a crime. In considering the preceding paragraphs, it is crucial to note that African-Americans are often imprisoned for crimes which should not be crimes to begin with, mostly the so-called victimless offences (drugs)30. Evaluating and judging these African-Americans unfairly exacerbates the above error. However, the issue of the legalization of drugs is another matter for another discussion. What is interesting to note is the validity of profiling if some minority groups are more inclined to carry out some crimes which society takes very seriously. If some drugs are made valid and the membership in minorities is not linked with other crimes, the issue of racial profiling would cease to be a topic of debate31. Moreover, it is sometimes pointed out that there is moral difference in the use of race as a criterion in profiling and using such as the only criteria. Nevertheless, using race as one of the standards seems to be more harmless than using it as the only standard or determinant. It is often enticing to discount this because in both instances, race is used to screen a group, only that in the first instance, the group includes all individuals, and in the second group, all individuals who also meet other criteria32. However, Kamm emphasizes the fact that moral elements can have different roles in various conceptualizations, and may impact on moral assessments in instances which turn on other elements present33. Using race as the only determinant or factor would not be reasonable because it would lead to investigations on individuals who, based on other criterion, would likely be innocent – this while, others who should be investigated, are not given enough attention. In the actual sense, these other factors, (excluding race) would actually be more useful in the assessment of crimes. It is important to note that the possible abuse of discretion is already a significant risk among most police officers who see racial profiling as an appropriate means of enforcing the law. They do not out rightly use the term profiling, however police officers actually apply this in enforcing the law because they believe that it is what the public and their administrators expect of them34. In trainings for cultural sensitivity, police officers explain that they stop black people while driving through exclusive neighbourhoods because even if it makes them uncomfortable. They claim that it is what is expected of them. In instances when individuals from exclusive neighbourhoods call the police wanting someone stopped, the constables do so, and their superiors expect them to as well35. For as long as the courts do not order them to stop for applying racist techniques, they would keep applying this practice. Profiling is not an isolated case among rogue police officers, it is considered an enforcement strategy to police work, often justified with the unjustified belief that racial minorities are more likely than their white counterparts to commit crimes, more likely to carry guns, or use drugs, or commit violent acts36. Police officers often justify racial profiling by using probabilities. These officers believe that statistically, young black men are more likely to commit crimes37. Moreover, the courts have often released similar viewpoints in this regard, mostly allowing the common profiles for drug couriers to be used as a basis for reasonable suspicion. Some of these profiles unfortunately include race. As a result, many court decisions have unfairly targeted racial qualities in considering suspects. In instances when police officers utilize race as an element in the apprehension of criminals, they also contribute to the statistics on the subject matter38. As a result, police officers seem to rationalize profiling and their stop and search activities, thus arresting black Americans disproportionately because of the fact they stop African Americans more times than any other population. This cycle is bound to persist with more arrests of the minority races and as convictions disseminate the perception that minorities commit more crimes39. Police officers who apply racial profiling in enforcing drug laws are very much inconsistent because whites actually use drugs at a rate which is very much similar to African Americans and even higher than rates for Latinos40. Estimates from the Substance Abuse and Mental Health Services Administration point out that whites comprise about 70% of drug users, and even as blacks represent only about 12% of drug users, their arrest rate for drug abuse crimes rises up to about 35%41. Arrest rates, in this case, do not accurately indicate the reality of crimes in terms of patterns in law enforcement. Studies also reveal that police officers are more likely to stop cars being driven by racial minorities, and they often use minor traffic violations as excuses to stop them and search their cars for drugs42. They also use manipulation and intimidation in order to convince the drivers to agree to stops and searches and for the most part, these drivers are often released without any tickets or no recorded infractions. Only a small percentage of routine searches without apparent crimes being committed have actual crimes been discovered by the police officers43. Since whites were not often stopped and searched to a similar rate as Blacks, these African Americans account for many arrests leading to drug encounters. This same issue seems to be apparent in the highways where racial profiling is required by official guidelines. These guidelines often describe drug couriers to include those who use rental cars, who strictly follow traffic laws, those wearing lots of gold, drivers who do not fit the vehicles, and ethnic minorities linked with drug activities44. Police memorandums have also described drug dealers and couriers to primarily include black males and females. Directives from police supervisors also support the practice of racial profiling and these supervisors often provide strong motivations for racial profiling by rewarding drug arrests. Researchers note that drug arrests in poor areas which are mostly occupied by racial minorities are usually easier to make because of the open street policies of these communities45. The abuse of police discretion is also often apparent in instances of domestic violence. Domestic violence is one of the areas where police discretion is applied46. These police officers may be called in to respond to a domestic disturbance and as soon as they get into the household are confronted with ‘he said, she said’ scenarios. Moreover, the parties are often uncooperative and as a result, it is difficult to establish the true events which have led to the disturbance. In these instances, it is then the police officers decision to either arrest any or all of the parties or to just allow the parties to settle the domestic quarrel on their own. Factors which usually impact on police discretion in arrests include race and ethnicity, as well as the seriousness of offenses, the demeanour of suspects, poverty, and social marginality47. In domestic situations, all these factors often apply. The law may expressly or implicitly allow police officers with the discretion in what laws to implement and when, police easily learn which cases the prosecutors will formally file or which judges will convict48. Police officers are also often influenced by previous experiences, including situational and attitudinal elements. Studies indicate that domestic violence offenders would likely be arrested if there is physical harm on a victim. This belief also manifests in situations where one of more of the children in the household are physically harmed49. However, police discretion may leave individuals at risk of being subjected to actual violence and even death. Since police officers often make arrests in instances where apparent physical harm manifests on the domestic violence victim, other instances where no physical harm is seen, no arrests are made; however, the risk to the victim remains. These victims would often have to live in fear of being actual victims of physical violence. Although compelling reasons may lead to arrests being carried out during incidents of domestic violence, the police in general try to avoid these situations or are short in action in these incidents. In effect, many police officers opt to refer these incidents to social workers and social scientists. They also end up considering alternatives to resolving these domestic violence situations with remedies like mediation, counselling, and social service referrals50. They often end up not making arrests in these situations because they believe that domestic violence is a private matter and they do not want to involve themselves in these situations. These officers are also sometimes faced with uncooperative females who are unwilling to press charges, to testify against their partners or husbands, or who are unwilling to leave their husbands51. These police officers are also reluctant to carry out arrests because these arrests may deprive the family of their breadwinner and leave the family without a source of financial support52. In some incidents of abuse, male officers also often end up siding with male abusers, supporting the abuser’s right to impose his dominance in his household. Drunken driving incidents are also situations when police discretion is required. Historically, drunk driving has not been implemented as strictly as it is now being implemented. Police officers making arrests for drunk driving have been classified in different ways: the rate busters, the moralists, and the bounty hunters53. However, their discretion in not making arrests also includes considerations like laziness (avoiding court dates and paper works); opinions that DUIs are not serious crimes (low priority); and a lack of faith in the arrest itself (belief that there is no point in making arrests)54. All in all, police officers are often faced with situations of drunk driving and they often have to make decisions on what to do about these drunk drivers; these decisions in many instances may be coloured by unfair and illogical perceptions about drunk drivers and drunken driving. Conclusion Based on the above discussion, police discretion is one of the most essential yet controversial functions of police officers. There are various issues often seen in its application, and most of them often involve the practice of racial profiling, issues in domestic violence, drunk driving, and similar acts where police judgment is needed in their decision to make or not make arrests. For the most part racial profiling has become a major issue in the application of police discretion because many police officers have taken to abusing their discretion in implementing arrests and stops and searches. A major determinant in their routine stops and searches has admittedly included ethnicity, with minority blacks or Hispanics figuring more in their routine stops and searches. As a result, the rate of Hispanics and Black Americans being stopped during routine stops and searches is usually higher, but the probability of these searches leading to actual arrests has been low. This indicates that police judgments while applying their discretion may need to be reviewed and reassessed because the stereotype on criminal activity may no longer be true, or else, their routine searches based on probability of criminal activity would have yielded a high rate of illegal drug users or weapons traders. Other applications of discretion have been seen in instances of domestic violence and drunk driving. These instances also support the fact that there are issues in the application of discretion by police officers – that this discretion needs to be based on legally and logically founded truths, not on demographic and subjective factors. Reference D. Barlow & R. Barlow, ‘Racial Profiling: A Survey of African American Police Officers’, (2002) 5 Police Quarterly, 334 P. Booth, ‘The control of Discretion: Planning and the Common-Law tradition’ (2007) 6 Planning Theory 2: 127 G. Cole. & C. Smith ‘The American System of Criminal Justice, International Edition’ (London: Cengage Learning, 2010), p. 108 M. FitzGerald & R. Sibbitt, ‘Ethnic Monitoring in Police Forces: a Beginning’, Home Office Research Study 173, London: Home Office Research and Statistics Directorate, 1997). J. Goldstein, ‘Police discretion not to invoke the criminal process: Low-visibility decisions in the administration of justice’. (1960) 69 Yale Law Journal 4, 543 T. Green & C. Kelso, ‘Police Discretion in Domestic Violence Incidents’, (2010) 14 The American Association of Behavioral and Social Sciences Journal, 24 J. Hughes, ‘Some straight talk on profiling’ (2000), 16 Law Enforcement News, 530, 15. F. Kamm, ‘Harming, Not Aiding, and Positive Rights,’ (1986) 15 Philosophy and Public Affairs 1, 3-32. G. Kelling, G, ‘Implementing Community Policing: The Administrative Problem, in Perspectives on Policing, No. 17, Cambridge, (Oxford: Oxford University Press, 1999). R. Kennedy, ‘Suspect policy. 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Miller, ‘Police Stops, Decision-making and Practice’: Home Office Policy Research Series (2000), p 15 H. Quirk, T. Seddon, & G. Smith. ‘Regulation and Criminal Justice: Innovations in Policy and Research,’ (Cambridge: Cambridge University Press, 2011), p. 220. R. Reiner, Policing and the police, in: Maguire, M., Morgan, R. and Reiner, R. (eds.) The Oxford Handbook of Criminology, (Oxford: Oxford Publishing House, 1997), 35 R. Remington, ‘Discretion in Criminal Justice: The Tension Between Individualization and Uniformity.’ (London: Routledge, 1993), 53. M. Risse, M, ‘Racial Profiling’, Harvard University (2003) (accessed 08 November 2011) J. Shantz ‘Racism and borders: representation, repression, resistance’ (London: Algora Publishing, 2010), p. 15 Substance Abuse and Mental Health Services Administration, ‘National household survey on drug abuse, population estimates,’ (Washington, DC: Substance Abuse and Mental Health Services Administration, 2001). M. Townsend ‘Black people are 26 times more likely than whites to face stop and search’ (2010). The Observer. (accessed 14 November 2011) US v. Avery Read More