Police Discretion: Racial Profiling and Unethical? Is It ...



Police Discretion: Racial Profiling and Unethical? Is It Really That Effective?Term Research Paper BySol LopezCJ-1010SLCC Spring 2014A numbers-runner is arrested for violation of a gambling statute, while a high-stakes poker game at an upper-class gentlemen's club goes on unmolested. A man with one marijuana cigarette in his possession is arrested, not because he more than others should be imprisoned, but simply as an exemplary warning and deterrent to 30,000 other marijuana smokers in the city. A state trooper recognizes a drunk driver as the son of the president of the local bank and decides not to arrest him. A policeman stops a long-haired youth who is playing a harmonica in the park and asks him for identification; when the youth “appears” arrogant, the policeman arrests him for disorderly conduct. Discretion is defined as the authority to make a decision between two or more choices. More specifically, it is defined as the capacity to identify and to document criminal and noncriminal events. Police discretion plays a large role in determining if a person is released without action, cited or arrested for an alleged infraction of the law. It allows police officers legitimate powers to take away an individual’s freedom. Every police officer has a great deal of discretion concerning when to use their authority, power, persuasion, or force. It is a powerful and unpredictable tool police use to exercise their authority to maintain social order in society. The issue of whether or not we should police officers should exercise discretion has proven to be a very heated and controversial topic. Since there are many valid pros and cons to each side of the argument, I started my research with the questions, “Does it help the practice of law enforcement and public safety?” and “Does discretion raise ethical issues?” In an academic journal called Probation and Parole Officers and Discretionary Decision-Making: Responses to Technical and Criminal Violations published in June 2007, the authors Mark Jones and John Kerbs, examined two views on the durability of discretion. The first view represented an enlightened and flexible way of dealing with social problems described as service-oriented. In contrast, the second view represented a selective approach to enforcement, and one that ultimately allowed officers to define justice in accordance with their own priorities and individual prejudices called legalistic-oriented. They also wrote on the difficulty of measuring discretion since criminal justice decisions are seldom based on a single rationale, such as race, gender, or age. Citizens expect police officers to protect and serve the community, yet citizens often have no clear understanding about the realities of police work. In fact, many variables enter a police officer’s mind when making the decision to take formal action against an accused offender. In these complicated situations, police have to decide between proper and improper procedures. In the book Criminal Justice in Action by Larry Gaines and Roger Miller it states that there are four factors that generally enter the discretion equation in any particular situation. The first and most important one that it talks about is the nature of the criminal act. The less serious a crime, the more likely a police officer is to ignore it. The second element is the attitude of the wrongdoer toward the officer. It gives the example that a motorist who is belligerent toward a highway police officer is much more likely to be ticketed that one that is contrite and apologetic. The third is how the relationship between the victim and the offender can influence the outcome. For example, if the parties are in a familial or other close relationship, police officers may see the incident as a personal matter and be hesitant to make an arrest. The last factor is departmental policy. For instance, “if a police administrator decides that all motorists who exceed the speed limit by 10 miles per hour will be ticketed, that policy will certainly influence the patrol officer’s decisions. Policies must be flexible enough to allow for officer discretion, but at the same time be specific enough to provide the officer discretion, but at the same time be specific enough to provide the officer with a clear sense of his or her duties and obligations”.Law enforcement agencies do not have the staff or funds to investigate every crime, so they must decide where to direct their limited resources. Police agencies know how important it is to get to every citizen’s call of distress but at the same time, it’s very unrealistic to expect them to stop every single person that breaks even a minority law. Overcrowding in prisons and jails affects both law enforcement agencies and the courts- there simply not enough room for a convicts. The criminal justice system uses discretion to alleviate these pressures. Police decide whether to arrest a suspect; prosecutors decide whether to prosecute; magistrates decide where there is sufficient probable cause for a case to go to a jury; and judges decide on sentencing. Collectively, these decisions are said to produce an informal criminal justice system because discretion is informally exercised by the individual and is not enclosed within the rigid confines of the law. Some argue that the informal process has made our criminal justice system more just. Given the immense pressure of limited resources, the argument goes, only rarely will an innocent person end up before a judge and jury. Of course, sometimes discretion is also based on policy considerations. Employees of the criminal justice system may make decisions based on their personal values, which, depending on what those values are, may make the system less just in the eyes of some observers. For that reason, discretion is closely connected to questions of ethics in criminal justice. Honesty, integrity, courage, responsibility, good character; all of these words have been used to describe a person who is ethical. The criminal justice officer should represent the highest level of ethical conduct in a community. The major portion of the men and women in law enforcement throughout this country hold the public trust as sacred and in return are seen as trustworthy and are therefore, assumed to make honest decisions. They are hard-working police officers who have a commitment to serving the public with integrity and the highest standards of ethical behavior. However, despite a rising commitment to integrity in many police departments and law enforcement agencies, many argue that the discretion to let each police officer decide cases on their own causes unnecessary disparity. This in turn leads to selective enforcement practices and may result in discrimination against victims. In a scholarly journal called Police Discretion in Contemporary America by Bernice B. Young published in April 2011, it states that “an equal enforcement policy would avoid ―unnecessary disparity.” Young argues that it is essential to establish rules that direct or guide police officers’ discretion. When police departments fail to develop clear policy guidelines about complex police work, the use of necessary discretion may have serious moral and legal ramifications. The U.S. Constitution gives state governments the authority to enforce laws in a manner consistent with the theme of the Judicial System and the Fourth and Fifth Amendments. That is, police officers must have probable cause to execute a lawful arrest of any citizens in violation of statutes or criminal laws. Discretionary authority represents one of the most critical and difficult exercises of power for law enforcement in America today. Police discretion in a democratic society is required to maintain social order. However, the exercise of discretion poses an uncomfortable paradox in a democratic society. Can the legal system confine police powers to legal duties and limit personal discretion in exercising authority given? Police actions and interactions with minority groups have caused enormous controversy. Those actions have given rise to the question of whether institutional racism exists in law enforcement organizations, also known as racial profiling. In Jim Cleary’s academic journal called Racial Profiling Studies in Law Enforcement, he defines racial profiling occurring “when a law enforcement officer uses race or ethnicity as one of several factors in deciding to stop, question, arrest, and/or search someone.” He gives an example of racial profiling which would be a police stop based on the confluence of the following factors: age (young), dress (hooded sweatshirt, baggy pants, etc.), time of day (late evening), geography (in the “wrong” neighborhood) and race or ethnicity (black or Hispanic). Under this broader definition, racial profiling occurs whenever police routinely use race as a factor (along with an accumulation of other factors) that causes an officer to react with suspicion and take action. The concern is that racial stereotyping of minority groups by police leads to police bearing down more heavily on minorities than other groups. It may or may not be accurate to conclude that institutional racism is the drive of police conduct toward minorities. However, minority groups perceive police actions toward them as racist. To what extent does racial prejudice influence the police officer‘s discretionary judgment? Any form of race discrimination practice by police officers anywhere in the world is disturbing and incompatible with good law enforcement. Research revealed that blacks were twice as likely as whites to report improper treatment when stopped by the police, and they were more likely to question the legitimacy of police searches. While Hispanic respondents fell between black and white respondents, their results also manifested a need for police to gain legitimacy among minority groups. As the consequences of improper police practices, tension between the criminal justice system and the public, particularly in minority communities, continues to fester.Before I started this research paper, I didn’t really know much about police discretion. I did know that police have to make decisions in who to stop and whether or not to cite them for whatever their crime may be. My original research question was “Does it help the practice of law enforcement and public safety?” I’ve come to a conclusion and I personally feel like it does help for three main reasons. First, it’s very unrealistic to expect them to stop every single person that breaks even a minority law. Second, overcrowding in prisons and jails affects both law enforcement agencies and the courts and discretion helps with that, and third, it makes our criminal justice system more just.Cleary, Jim, “Racial Profiling Studies in Law Enforcement”, Minnesota House of Representatives Research Department, June 2000Gaines, Larry and Miller, Roger, “Criminal Justice in Action” 2012Young, Bernice B., “Police Discretion in Contemporary America”, School of Continuing Studies, 4 April 2011 ................
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