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Police discretion is a very simple situation. If you are a police officer, far removed from the Chief, the supervisory personnel, and anyone who can control what you do, you have the ability to make personal decisions that determine how the law is or is not enforced. In an ideal world every speeder would be caught, every drunk driver would be pulled over, and every stolen bike would be tracked until it was located.
The same “discretionary power” occurs in every organization. The farther you are from the people who supervise you, the more you will have to be able to make decisions for yourself in situations. Sometimes doing that is easy and follows a set procedure and it will be followed the same way everywhere. Other times it will be something that you must modify and adjust individually to fit the situation and the possibilities instead of following some norm or set of procedures.
Reality is much different from this, however. For many thefts, unless it is something that has a large value and can be easily identified, like artwork, cars, boats, and large jewels, there will be little follow up on the case and the insurance company will be the people that the victim will mainly deal with. There is only one drunk driving arrest for every 27,000 miles of drunk driving. “You could expect to drive all the way across the country, and then back, and then back and forth three more times, chugging beers all the while, before you got pulled over.” (Levitt and Dubner)
Therefore, as a member of the police force, you will have many opportunities to make these discretionary decisions yourself. Whether a foot, bike, motorcycle, or automobile patrol, you will have to decide when it is smartest to stop a driver, when to intervene in an incident, when to react to certain things, and you may not always have the guidelines of the department to follow, and in some cases you will have to use your knowledge of the law and how the local prosecutor works to make a decision that could be either right or wrong. You need to know enough information to make the right call every time, even if it is outside normal procedure.
Realize that as an officer, you are representing the government and its powers; you are the legitimate power of the government that Max Weber talks about.
Since the 19th century…[the goal has been] to reduce the police’s functions, at least in the imaginary, to fighting crime and maintaining order in the streets.” (Seri) Such acts ignore the “political” side of policing and serving as an officer, and the increasing “gray areas” that they are asked to be able to interpret and handle.
Because of this the idea of police reform constantly looks for accountability, and what become episodes of police abuse of power take place because of this “gray zone” of behavior that escapes regulation but still falls under the concept of police discretion. (Seri)
The conflicts that will be faced are many: Authoritarian police or fight crime? Absolute police authority or more local accountability? Civil rights versus fighting lawlessness effectively? Private versus public policing? Social policies to prevent crimes or controlling criminal activity? (Shaw)
1. You see a car pulling from a tavern. Do you stop it? Ideally, you would wait until you know the driver is drunk, as shown by weaving in and out of traffic. But if you just were given training in how even one beer diminishes the driving ability and you aren’t sure how many the person had, do you use your discretion to stop the car? Someone small and skinny, with only a beer or two, might register as inebriated. In simple terms, you cannot, there is no evidence that a crime is being committed. Any such stop would be classified under “abuse of power” on review, and would possibly be taken as an attempt to put the tavern owner out of business.
2. You pull up to an intersection of two four lane roads and stop at a light. You see someone make a left turn and accelerate back down the road you are on, perhaps exceeding the speed limit by the time they reach you. If you are able to get the radar or lidar on him, you might even confirm he is speeding. Do you pursue? This is a situation that has many options to evaluate: Can you turn all the way around SAFELY to pursue? Will he still be speeding when you get to him or will he have seen you and slowed down? Could you recognize the car in the crowd of traffic that passed through the intersection so you would be sure it was this red Grand Am and not that red Grand Prix? In an ideal world, you MAKE the process safe by using your lights and waiting for traffic to stop, turning around and tracking the speeder down. Hopefully you have all that information saved on the speed gun and any internal video you have. Hopefully you find the right person and pull them over. Ideally, you hand out a ticket. But beyond these choices ---
3. You do decide to stop the car, see the driver is from out of state, they deny speeding (without arguing and act politely) and even concur that you could be right, they were so busy looking for the name of the streets on their directions they COULD have gone over the speed limit for a while, but as soon as they noticed they hit their brakes to come back to the right speed for the road. The driver asks how he could have avoided making that mistake so he does not do it again. Do you give him a verbal warning and make the tourist groups happy? Do you ticket him knowing he cannot return from out of state and fight it? If he truly WAS speeding, you ticket him, but where do you determine the point where you give someone that break? This one will always be questionable, no matter which way you handle it.
4. Domestic disturbances may cause an officer problems, especially if they feel both the partners in the argument are at fault for the fight. Should one be an abuser and left in the home at the end of the disturbance there could be a larger crime waiting to occur.
5. An area where there will always be problems is when an officer meets a mentally handicapped individual who is being accused of a crime. Some are close enough in the spectrum that they seem to be almost normal while other swill not know how to react to different things that the police department thrives on – loud noises (the sirens) disorient them, yelling commands – and yelling them louder if not followed – does not help when the individual is handicapped enough that they are in the category that needs to have time to understand the orders they are given.
6. Contact with minorities can be a major problem, especially in areas where there is a great deal of racial conflict. Crowds will gather, rumors will be whispered through the crowd, and if the person is injured or killed, there will be investigations to make sure that all diligence was paid when deciding how to counter whatever threat the officers felt they were facing.
7. When using force, especially in situations like the mentally handicapped or minorities, an officer will need to be especially sure that they are acting according to department policy and less on discretion. These are situations where the abuse of power is a common complaint from the communities involved.
8. Sometimes location determines the response and the discretion level. Officers on the West Coast may now find themselves having to react differently to extremely small amounts of cannabis in possession, especially since “medical marijuana” was approved for sale. The point where you go from looking at someone as a user or a medical user to where they are considered a dealer is now blurred.
9. For some officers, deciding what to do with different sexes – and even transsexuals – can be a major position of discretion. Males tend to see females as vulnerable, even though they may not always be the injured party. Males also see other males as aggressors like themselves. What they do when they meet transsexuals will vary depending on their personal growth and adjustment to such things. When you include homosexuals in the mix, the possibilities for being over reactive to certain situations arise.
10. Reports of disorderly conduct can arise from things as varied as public drunkenness to a party in a back yard with loud music to people who are ready to attack each other. The responding officers need to be able to look at what is happening and adjust and adapt, and hopefully settle the situation, without being drawn into major situations that could even, in the case of a party with a lot of people drinking, turn into a small riot. If the party gets quieter, perhaps the neighbors who complained will be happy. Perhaps the two ready to fight need to be taken to the police station in separate cars and charged so they will not think about doing the same thing again.
The main problem for a police officer is that they arrive on a situation in the field for which they were not trained, or if they are being made to enforce a new law, where the guidelines may not be entirely clear. The mythical aspect of police work that the public believes is that every officer is out there to enforce the law for every crime. In addition, while the discretion they are allowed to use in their role as officers has many variables, it also brings into question whether or not the law is being enforced at all. The only way to totally control discretion would be for officers to follow all the laws exactly how they are written in every situation. In reality, this is not possible.
REFERENCE
Levitt, Stephen D & Stephen J. Dubner. (2009) Superfreakonomics. HarperCollins Publishers. New York. pp.2-3.
Seri, Guillermina Sofia. Police Narratives on Uses of Discretionary Power: A Comparative Inquiry on a Challenging Aspect of Democratization.” Retrieved 3/4/10. .
Shaw, Mark. (2002) Transformation 49. “Crime, Police and Public in Transitional Societies.” Project Muse.
Rivera, Brandi. (Updated 3/7/06) Associated Content. “Police Discretion.” Retrieved 3/4/10. .
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