Police Discretion Position - Essay Example

Police Discretion Position According to Davis (1975, pg When asked whether full enforcement is constantly practiced, police usually answer in theaffirmative, citing "policy" as the reason. The main ingredient of all law enforcement policies is a commitment to enforce all laws. Even though a shortfall exists in the resources needed to enforce all laws and police officers' perceptions about prosecutors, judges, and the entire court system may influence their decisions to enforce all laws, police still fail to acknowledge the lack of full enforcement. Nevertheless, the citizen who has been stopped for a traffic violation and been given a warning instead of a citation knows that discretion in enforcement exists. Even when confronted with instances of discretionary practices, many police departments will not openly admit to them and, instead, adamantly perpetuate the myth of full enforcement. One will find that it is very common throughout the country that virtually all of police work involves discretion, with the exclusion of mandatory arrests. Furthermore, it is not just the police officer who has to use discretion, but it is also the prosecutor deciding what charges to file or how the offender should be sentenced, and the judge who has the most discretion of all when it comes to setting the ultimate punishment at the culmination of the case. Therefore, it is unlikely that discretion is a myth. It simply must exist for the criminal justice system to function as is. Laws cannot be passed to cover every possible scenario, which makes the practice of using discretion necessary in law enforcement. According to Maggs (1992, pg. 1), "Few issues in criminal justice presently arouse the public's attention more than how much flexibility and discretion the police should have. Police departments and their officers traditionally have had broad authority to decide how to perform their work, and most people simply have trusted that they will exercise their powers in a professional manner. Yet, acceptance of the traditional arrangement has diminished, perhaps more in the past year than ever before. Disturbing incidents of misconduct, incompetence, and unresponsiveness have suggested to many a need for closer control over individual officers and for external constraints on departmental policy-making." There are a number of causes of discretion that should be taken into consideration. They are commonly grouped into three categories: offender variables, situation variables, and system variables. There are stern but true facts that surround each of these variables (APSU, 2007). The first group is offender variables. Juvenile complaints are taken less seriously than those made by adults. African Americans are more likely to receive excessive force or be arrested than other races. People who are polite and cooperative with police are treated better by them. Better police service is given to individuals with middle to upper income levels than other those in lower income brackets. Police also tend to handle situations involving individuals suffering from mental illnesses differently. Gender plays a role in how individuals are treated by police. Only some offenders are lectured and sympathized with by police (APSU, 2007). The second group is situation variables. Matters involving crime are taken more seriously by police than matters not involving crime. Police often overact to the presence of weapons or to resistance by an offender. Police actions are also affected by the type of property that is involved in a property crime and their decision whether or not to pursue any investigation on that crime. If a police officer initiates an act versus a citizen, it is more likely to be acted upon. When it comes to vice enforcement, visibility of the vice is the major factor in acting upon it. When the media, an audience, or witnesses are present, the police are far more likely to behave more bureaucratically than they would otherwise (ASPU, 2007). The final category is system variables. If the courts and correctional facilities are maxed out, the police tend to behave more leniently. If the city is hurting for money, the police tend to be stricter. Individual discretion is controlled by the overall size and structure of the police department. Less arrests are made in communities where adequate resources such as social services, detox, and mental health facilities are available. Finally, how an officer acts on a scene can depend heavily upon how he was called to that scene (ASPU, 2007). The most obvious alternative to arresting a potential offender is nonarrest. APSU (2007, pg. 1) lists these reasons for nonarrest: Police believe the legislature did not desire full enforcement. Instead, they believed the politicians were making symbolic statements, expressing an ideal, or appearing to be tough on crime. Some (community standard) statutes are full of ambiguity, and some old statutes need to be taken off the books. Other laws may carry penalties that the police think are too severe. Police believe the community wants lenient or lax enforcement. The crime is common within a subcultural group, victims do not file complaints, witnesses refuse to testify, victim and offender are related, the victim is involved in misconduct, and the victim is more likely to get restitution without arrest. An arrest may cause loss of valuable public support or unduly harm someone's status in the community. Police believe other duties are more urgent or important. The officer goes off duty in ten minutes, the department has stopped subsidizing officers for court appearances, there's inadequate manpower for backup, and the police trade nonenforcement for other favors, deals, or to gain informants. There are many different areas in which a police officer may need to use discretion. First, it is important to clearly define discretion. "Discretion is the empty area in the middle of a ring consisting of policies and procedures. And remember Davis' definition -- the making of choices from among a number of alternatives The freedom of being able to make choices is called a strong sense of discretion by Dworkin. In the weaker sense, we would consider cases in which not only the rules don't apply, but the officer makes individualized judgments. In both senses, it's the problem of loose definition" (APSU, 2007, pg. 1). For the purposes of this particular project, 10 types of crimes where police could use discretion will be illustrated. These include domestic violence, drunk driving, hate crime, mental illness, use of force, vice crime, rape, firearms, assault and battery, and reckless driving. The first for consideration is domestic violence. According to APSU (2007, pg. 1), "This has been one area where police have been more than willing to ask social workers, social scientists, and academicians for help. Instead of just locking up husbands who beat their wives, the police have always appeared more interested in doing nothing, and more recently, experimenting with alternatives such as mediation, counseling, cooling-off periods, social service referrals." The next for consideration is drunk driving. According to APSU (2007, pg. 1), "Although we are accustomed now to toughness with this crime, toughness was not always the case historically. There have been some studies showing three kinds of officers who DO make DUI arrests: (1) rate busters; (2) moralists, or drunk-haters; and (3) bounty hunters, who wish to collect the overtime pay." Next up is hate crime. According to APSU (2007, pg. 1), "We are currently in a societal phase where the primary law enforcement action regarding hate crime is documentation. The principle behind hate crime legislation is that even the most minor offense undercuts the very heart of a community, but police have widespread discretion in deciding which acts, which individuals, and which groups in the community are minor nuisances or community threats. In addition, the police are accustomed to protecting every group's rights, regardless of belief or ideology." Next is mental illness. APSU (2007, pg. 1) says that, "For the most part, homelessness, alcohol and drug abuse, and mental illness are intermingled. Some 8-11% of police calls for service involve the mentally ill, and an unknown additional amount involves malingering by poor people who do not have access to private care so they call the police to forcibly obtain care for family members. Calls about panhandlers can constitute as much as 25-35% of all calls. If facilities are not available, the police generally allow the homeless to stay on the street, or they forcibly relocate them." The next category is vice crime. According to APSU (2007, pg. 1), "Vice is crime against the public order or morality (e.g., prostitution, nude dancing, gambling, pornography, illegal sale of alcohol, narcotics). Such crimes are also "victimless" in the sense that participants are involved consensually and willingly." There are several policy alternatives that define how criminal activities can be prevented or controlled without the use of excessive force or unnecessary punishment. These include restrictive policies, discouragement policies, and judgmental policies (APSU, 2007). References Davis, K.C. (1975). Police discretion. West Publishing Co.: St. Paul. Maggs, G.E. (1992). Police discretion. University of Texas School of Law. Police discretion. (2007). APSU. Retrieved September 22, 2008, from http://www.apsu.edu/oconnort/4000/4000lect07.htm Read More