Does Police Discretion Amount to a Miscarriage of Justice - Literature review Example

?Does Police Discretion Amount to a Miscarriage of Justice? Introduction It is only in the recent decades that scholars have shifted their focus fromoffenders to the police. One of the issues that scholars discovered, when looking at law enforcement, which appears to have brought about a certain level of controversy was ‘police discretion’. Police discretion, according to Scraton (1985 as cited in Pond 1999, 94), implies that “Police officers necessarily use their personal judgment to weigh up a situation and enforce the law” (Pond 1999, 94). Basically, the police do not implement the law at all times and an undeniable proof of an unlawful act does not constantly lead to criminal trials. In truth, as stated by some criminologists, when there was a dispute, public order takes precedence over enforcement of the law or policing (Maguire, Morgan, & Reiner 2007, 227). Once it is recognised as an expected aspect of law enforcement that there are instances when the law is ‘inadequately implemented’ the issue then emerges whether every sector of the society gain evenly from this. This essay reviews related literature on police work to explore whether police use of discretion could be considered as a miscarriage of justice. Police Discretion Police have the power to take away the liberty of citizens, apprehend or detain them, and even use lethal force to restrain them. An important feature of this professional duty is the ‘discretion’ the police has in performing their duties. Discretion may include discriminating/selective law enforcement (e.g. when a law enforcer decides not to apprehend a pub that is selling liquors to minors (Ogletree & Sarat 2009, 18). Law enforcers exercise discretion when they make a decision to apprehend one offender for unruly behaviour but to let another go free. Most police officers exercise a considerable extent of personal discretion in performing everyday duties, occasionally called in criminal justice ‘low-visibility decision making’ (Siegel & Worrall 2012, 125). Such expression implies that, not like most departments of criminal justice, law enforcers are neither controlled in their everyday practices and behaviour by governmental inspection nor under judicial investigation, except when their actions undoubtedly abuses a criminal’s legal rights. The people accept the power of police to use discretion. However, recently, scholars and policymakers have publicly shown great resentment about the discretion used by the police, and there have been numerous demands to abolish, weaken, or regulate this power (Siegel & Worrall 2012, 125-126). These people believe that police use of discretion often leads to miscarriage of justice. One justification of such demands is the widespread belief that law enforcement is ought to be ministerial, performing its tasks in rigid compliance to legislative conditions. Another justification is the widely held belief that as the police use discretion, they are predisposed to show prejudice against some individuals and/or groups, mostly resulting in wrongful convictions (Sutherland, Cressey, & Luckenbill 1992, 355). As a matter of fact, there is abundant evidence revealing that, for a particular offence, law enforcers are more inclined to apprehend men than women, young individuals than older ones, Black people than White people, etc. Thus, police discretion attracts a lot of controversies (Sutherland et al. 1992, 355). As remarked by William McDonald (1973), “It invites arbitrariness, favouritism, corruption, and injustice. Even when it is exercised even-handedly, it can create the appearance of injustice” (Sutherland et al.1992, 355). All the same, police discretion will continue to exist because no legislative body, absent from the street, can accurately and unmistakably specify beforehand what actions must have as its outcome a formal arrest. As emphasised by Albert Reiss, Jr. (1971) (Sutherland et al. 1992, 355): It is incumbent upon a police officer to enter upon a variety of social stages, encounter the actors, determine their roles, and figure out the plot. Often, before they can act, the police must uncover the ‘plot’ and identify the roles and behaviour of the actors. This is true even in emergency situations where an officer is expected to assess the situation almost immediately and make judgments as to what he must do. Basically, when using discretion, law enforcers should be capable of justifying their decisions based on justice. Complying with the official rule of justice would be an excellent start: in dealing with individuals and circumstances differently law enforcers should be prepared to explain that their differential handling is reasonable by reason of important differences. The official rule of justice states that a person must treat similarly people who are similar, and must treat in a different way people who are different, consistent with their dissimilarities (Kleinig 1996, 58). Discretion is misused when a person treats differently people who are significantly similar or treats similarly people who are significantly dissimilar (Ogletree & Sarat 2009, 116). Apparently, what determines the similarity of people is difficult, because law enforcers can constantly find an aspect that is dissimilar among the people and the circumstances where in they are situated. Scholars have argued that the practices of police discretion will differ from jurisdiction to jurisdiction and that this is a root of miscarriage of justice. For instance, Howard Cohen claims that the use of discretion by the police is “not authorised, statutes and official department directives do not delegate the police officer the authority to use discretion—there are no published guidelines for its use, no directives outlining the appropriate scope and limits of discretionary action” (Kleinig 1996, 56). Selective enforcement, according to Cohen, would be a miscarriage of justice. Without a doubt, many people can have the same opinion that selective enforcement rooted in racial difference is a major root of miscarriage of justice. There are evidently erroneous discretionary judgments, which misuse the power of discretion, and implementing the laws exclusively against racial minorities is one form of misuse (Walker 1999, 148). In contrast, the argument that all jurisdictions must comply with the same procedures of police discretion suggests that there is a single wholly correct judgment for all jurisdictions. This idea could be complicated. It is specifically complicated due to the diverse roles that police officers are assigned to perform (Cross 2009, 64). Different law enforcers could evaluate the roles in a different way and thus make different decisions about the right consequences. Furthermore, justice calls for every individual’s equal right to have his/her interests and wellbeing safeguarded, respected, and represented. For instance, in their handling of women, police officers were not able to use their discretion in safeguarding people’s wellbeing in a manner that is in harmony with equal protection. Every person has been given the power of equal consideration of his/her wellbeing and damages. This does not imply that in effect all damages must be treated similarly (Maguire et al. 1994, 141). However, major damages must be handled just as critically. Police officers must not disregard damage because it took place in a low-income community and/or was racially based. A case in point is the handling of victims of sexual violence, wherein, until lately it was a widespread habit to disregard the accusations of female victims. For instance, police officers usually tried to catch out the ‘suspected’ victim by exposing her to lengthy and degrading questionings (Kleinig 1996, 57). As admitted by a police officer (Kleinig 1996, 57): “It is always advisable if there is any doubt of the truthfulness of her allegations to call her an outright liar.” The power of discretion is used by the police to make a decision whether or not there was an offence or criminal act, whether to investigate an offence, and whether to examine an offence seriously. Such decisions are partly determined by the thoughts and feelings of police officers. Apparently, this discretion can be exercised legally. Nevertheless, when their judgments are influenced by and indicate a sexist or racist prejudice, they are not substantiated. As observed by Gary LaFree, rape examiners are predisposed to disregard rape accusations where there was proof that the injured party did not comply with traditional moral conduct, as shown by evident sexual practice, clothing style, etc (Kleinig 1996, 57). Women are not given just treatment if law enforcers support their discretionary judgments with traditional expectations about proper female conduct which unfavourably affects women. Furthermore, if police officers have principles about tolerable degrees of aggression in sexual interactions or normal degrees of male sexual violence and use these to rape cases, thus disregarding the allegations of the woman, then police officers do not equally safeguard women’s interests. If police officers exercise in their investigations biased thoughts about the importance of sexual violence, demoralising the victim’s allegation to have been ill-treated, then women are dispossessed of their right to equal protection of laws (Siegel & Worrall 2012, 223-224). Law enforcers misuse their power of discretion when their discretionary decisions are determined by bias rather than by women’s wellbeing. Another root of miscarriage of justice as regards to the exercise of police discretion can be located in cases of domestic violence. For a time police officers did not rigidly implement the law or did not apprehend when the offence was committed by a spouse. Studies reveal that the police was less inclined to apprehend in instances of physical attacks between couples, married or unmarried, than in instances of outsiders: “Officers defined the problem as a ‘private’ matter. In the worst manifestation of this attitude, officers adopted the sexist view that violence by husbands against their wives was not a crime” (Kleinig 1996, 58). Advocates of feminism have claimed that this misuse of the power of discretion by the police suggested that police officers take domestic violence too lightly. Maltreatment of one’s wife is constitutionally minor (Kleinig 1996, 58). Because of the exposure of such maltreatments in a number of jurisdictions, law enforcement has been authorised to carry out an arrest in instances of domestic violence. Allegations of miscarriage of justice in the use of police discretion in cases of domestic violence have been focused on the findings that police judgments in such cases is not being carried out in the victim’s utmost interest or with a just consideration of its implication for the society if offenders are not apprehended (Kleinig 1996, 58-59). Hence in such instances police discretion has been completely limited in numerous jurisdictions. However, the biggest source of police discretion’s miscarriage of justice, perhaps, is the differential treatment of minorities. Minority group members all over the United Kingdom think that they obtain an unequal level of police discipline and force, but receive hardly any favourable delivery of police security or services of a liberal society (Walker 1999, 196). Without a doubt, a troubling feature of this trend is how totally unevenly the different groups in society view certain cases of police discretion when members of a minority group are concerned. Morgan and colleagues (1990 as cited in Maguire et al. 2007, 141), in an investigation of individuals detained in police stations, discovered that most of these arrested individuals belong to a group called the ‘police property’ component of marginalised groups. As stated by Lee (1981), “a category becomes police property when the dominant powers of society... leave the problems of the social control of that category to the police” (Reiner 2000, 93). The findings from the research of Morgan and colleagues (1990) indicate that police discretion is used unequally against young, jobless males and there are a large number of studies demonstrating that it is used unreasonably against ‘people of colour’ (Maguire et al. 2007, 141). Even though the police take an oath to implement the laws persistently, they implement only the laws they want to implement and implement even such laws erratically. In several instances, the police give out warnings, castigate, or let a person go rather than take him/her for questioning. Habitually, they choose not to apprehend for offences that they do not regard to be a major hazard, like petty brawls between friends, minor gambling misdemeanours, etc. In reaching these judgments, police officers are exercising discretion. The English common law has created a quite debatable principle of ‘constabulary independence’ (Maguire et al. 1994, 743). As illustrated by Lord Denning: “He [police officer] is answerable to the law along, and a chief inspector of constabulary... a chief constable is answerable to God, his Queen and his conscience” (Maguire et al. 1994, 743). Apparently, there are means for making the police answerable to personal judgments and senior officers answerable to force rule. People could file a complaint of miscarriage of justice against the police in the civil courts. The Police Act of 1976 established the Police Complaints Board to go over the reports prepared by police detectives (Pond 1999, 99). The Police Complaints Authority established within the 1984 Police and Criminal Evidence Act had greater authority to investigate, but was not able to meet the demands for independent investigations (Walker 1999, 5). The current procedure appears to have been unsuccessful in winning the trust of the public and petitioners. Police discretion’s miscarriage of justice can be prevented if law enforcers re-evaluate and re-create their ties and responsibility to the people they serve (Walker 1999, 5). Taking into consideration collective wellbeing, and maintaining a regular dialogue with community members they police, will transform how police officers use discretion and how they will assess them. Conclusions Both in its liberal and simplest form, police discretion can amount to miscarriage of justice because of several factors, such as police officers’ attitudes, environmental, legal, situation, and others. Without a doubt, police officers have been implicated in several controversies concerning miscarriages of justice. The power of police officers to use discretion is indispensable in a liberal society where complete and strict law implementation is adverse. Although the statute and common law have recognised that law enforcement should be granted the power of discretion, it is strongly recognised as well that it is merely allowable and beneficial when it is used justly for the sake of justice. The concept of a completely autonomous police is opposed to that of a law enforcement governed and regulated by political factors, and hence a certain extent of integration is called for, a certain extent of mechanism by which a justifiable level of police autonomy is sustained regardless of the necessity to make police officers answerable to the public. References Cross, N. (2009) Criminal Law & Criminal Justice: An Introduction. London: SAGE Publications Ltd. Kleinig, J. (1996) Handled with Discretion: Ethical Issues in Police Decision Making. Oxford, England: Rowman & Littlefield. Maguire, M., Morgan, R., & Reiner, R. (1994) The Oxford Handbook of Criminology. London: Clarendon Press. Maguire, M., Morgan, R., & Reiner, R. (2007) The Oxford Handbook of Criminology. London: Oxford University Press. Newburn, T. (2008) Handbook of Policing. London: Willan. Ogletree, C. & Sarat, A. (2009) When Law Fails: Making Sense of Miscarriages of Justice. New York: NYU Press. Pond, R. (1999) Introduction to Criminology. Winchester: Waterside Press. Siegel, L. & Worrall, J. (2012) Essentials of Criminal Justice. Mason, OH: Cengage Learning. Sutherland, E., Cressey, D., & Luckenbill, D. (1992) Principles of Criminology. Oxford, England: Rowman & Littlefield. Reiner, R. (2000) The politics of the police. London: Oxford University Press. Walker, C. (1999) Miscarriages of Justice: A Review of Justice in Error. London: Oxford University Press. Read More