Term Paper on "Police Discretion Position"

Term Paper 5 pages (1919 words) Sources: 0 Style: APA

[EXCERPT] . . . .

Police Discretion refers to any situation in which an officer deviates from standard procedure, or where official procedure permits officers to exercise their personal judgment about a specific situation. While some people may continue to believe that police officers have an unlimited amount of discretion; that is not the case. The legislature has enacted several mandatory arrest laws, and officers who fail to comply with those provisions are subject to disciplinary procedures. Of course, this has not eliminated officers who ignore certain laws, refusing to arrest for a variety of different reasons, but it has made the problem less prevalent and given crime victims and the community at large a venue for complaints. However, it is important to keep in mind that the exercise of discretion is an important, and even essential, part of police work. The law is a generic thing and simply cannot account for all of the scenarios that an officer might encounter in the field. The result is that identical offenses by very different offenders might merit very different responses.

There are three main causes of police discretion. The first source of discretion comes from the differences in offenders. Offenders from lower socio-economic or minority groups are generally treated more harshly by the police than non-minority or upper-class offenders. Likewise, offenders with criminal histories are generally treated more harshly than first-time offenders. Regardless of other characteristics, offenders who treat the police with deference and respect receive better treatment than offenders who are rude or abusive towards the police. Gender has an impact on how certain officers treat offenders; but the preferred gender depends on each individual officer. In addition, the mental health status of an offender can help determine treatment, but how that bias operates also depends on the individual officer.

The second source of discretion comes from the differences in victims. The age, race, gender, sexuality, and socio-economic status of the victim can all have a dramatic impact on how the responding officer chooses to teach the offender. Even more than any of those, the victim's own criminal history can dramatically effect how an officer responds to his or her complaint. Furthermore, if a victim is rude, abrasive, or disrespectful with a police officer, the officer may respond more leniently with the offender.

The third source of discretion arises from the individual criminal situation. Obviously, police are more likely to follow procedure when a crime is more serious and when criminal investigation has been initiated by the police, rather than by the victim. Likewise, if the crime has received publicity or an officer is otherwise aware that his actions may be scrutinized, officers are less likely to exercise discretion. In addition, when officers witness criminal behavior in the course of on-going investigations, they may choose to ignore such behavior for strategic reasons.

The fourth source of discretion comes from the rest of the criminal justice system. As a general rule, when the criminal justice system is overwhelmed, police are more likely to be lenient. In addition, when there are sufficient community resources to deal with criminals outside of the criminal justice system, officers are more likely to direct offenders to help available outside of the criminal justice system. Furthermore, when an officer knows that the judges and courts in his county are unlikely to treat an offense seriously, that officer is less likely to enforce that offense at the scene. In addition, community pressure can help change the tone of the criminal justice system. Some communities want strict enforcement of certain laws, while other communities or even subgroups bristle when those laws are strictly enforced. All of these elements can help create situations where officers are required to use discretion.

One of the classic scenarios in which police officers used discretion was for domestic violence calls. In older times, officers were hesitant to involve themselves in what they believed was a private matter, and may even have labored under the belief that not arresting an offender was better for the family. Modern officers may still harbor those beliefs, but mandatory arrest laws for domestic violence calls make it less likely that they will refuse to arrest an offender. However, most domestic violence mandatory arrest laws instruct that officers are to arrest the primary offender, and police officers still retain an enormous amount of responsibility in determining who the primary offender was. Failing to arrest the primary offender can lead to censure, so officers may end up arresting both the aggressor and a victim who has fought back; the result is that many victims who strike back in self-defense end up arrested as well. Despite this fact, officers should have limited discretion in domestic violence cases, because arrest has proven to be a more effective deterrent than non-arrest strategies.

Another instance where an officer may be called upon to exercise individual discretion is a noise complaint for a rowdy party. While most noise ordinances prohibit sounds over a particular decibel past a certain time, how an officer chooses to enforce an ordinance involves an act of discretion. It is here that an officer's individual judgment proves more valuable than a written ordinance. While a repeat offender may deserve to have a noisy party at 1am disbanded, a family celebrating a unique event with music at 10:15 PM would probably merit a simple request to turn the music down. This is a situation where an officer should be free to exercise discretion.

Minor drug offenses are another area where officers are often called upon to exercise discretion. Because almost every jurisdiction treats the possession of even a very small amount of a controlled substance as a very serious crime, officers may feel that arresting someone for possession of an amount of drug obviously intended for personal use is unfair and overly harsh. However, this exercise of discretion should not be permitted. The reason for this is that officers are more likely to be lenient to people that act or look like them, while continuing to enforce drug laws against those they perceive as others. This should be seen as a serious problem, even for those who believe that the current drug laws are overly restrictive, because only if the laws are consistently enforced will the lawmakers have an opportunity to assess whether those laws are successful.

A fourth scenario in which an officer might need to exercise discretion is when he or she witnesses the commission of a crime while investigating other criminal activity. While this situation is common in undercover work, the undercover scenario does not actually rely upon an officer's use of discretion, because the officer is expected to witness criminal acts without intervention while undercover. However, regular officers encounter the same type of problem, and may need to turn a blind eye to minor crimes and criminals in order to gain information about more serious criminal behavior. This type of discretion is essential to successful police work and targets major criminals, therefore police should be encouraged to use their discretion in these situations.

Vice work is an area that lends itself to the exercise of a tremendous amount of discretion. One of the reasons that officers traditionally site for exercising discretion in the enforcement of vice laws is that most vice laws target so-called "victimless" crimes, where the participants in the criminal venture are all volunteers. A classic example of such a vice crime is prostitution. In many instances, it might be more detrimental for all of the involved parties for the police to enforce those laws. Moreover, given the tremendous overlap between issues like mental health, drug addiction, sexual abuse and prostitution, arresting prostitutes seems unlikely to cure the problem. However, officers should be given guidance in the exercise of such discretion. For example, districts that target prosecution of johns, who generally have a greater social stake in avoiding prosecution, see a decline in prostitution rates that is not seen in districts that focus on prosecuting the prostitutes.

In fact, prostitution creates another area for the exercise of discretion. An overwhelming majority of prostitutes are subjected to sexual and physical assault as a result of hazardous working conditions. However, many of these victims are not treated in the same way as other victims of sexual assault, and officers may exercise the discretion not to prosecute their assailants as sexual offenders. On the contrary, some officers treat the rape of a prostitute as a theft-of-services, rather than a sexual assault. Police should not be permitted to exercise such discretion in the arena of sexual assault, because any non-consensual sex act is a sexual assault, regardless of the victim's social status or occupation. Ignoring these assaults not only further damages the victim, but might also encourage the perpetrator to engage in repeat offenses.

Gang violence is another area where officers may choose to exercise their discretion. Because gang members place themselves in violent situations, where they knowingly and willingly face an increased risk of assault and/or death, many officers are tempted to treat attacks on… READ MORE

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