Police discretion is a very important aspect in matters concerning criminal justice. There has been a constant dilemma between enforcing the law to the latter and/or to the spirit of the law. Discretion in the broader sense can be defined as the individual’s ability to make a decision basing on the principle of courses of the action. During training, the police officers are presented with different possible scenarios that they may encounter when they are out on duty. However, the situations presented are not exhaustive and the police more often than not come face to face with intriguing situations that demand their personal decision. The laws don’t cover all aspects and thus there are always new laws being put in place allowing for the police officers to use discretion in the mean time. There are also situations in which the law is ambiguous and the police officer will disregard the various interpretations of the law and employ his or her discretion in arriving at a decision (Rivera, 2006). Police discretion is usually put to use when the officers are presented with many options to come up with one choice they deem necessary depending on the situation at hand. Philosophers Ronald Dworkin and H.L.A. Hart have referred to discretion as “the hole in the doughnut” (Ndsaystarr, 2006). Discretion is the void in the middle of a ring consisting of policies and procedures. However, police are not always supposed to exercise discretion. In some instances, the law and departmental policies do limit or eliminate the discretion altogether. Discretion is usually bound by certain norms including professional, legal, social, and moral norms (Scott, 2009).
The police discretion takes into considerations many factors which can be summarized into three broad categories. These are the offenders’ variables which include those aspects that are directly linked to the offender including age, race, economic status, gender, and health among others. The police will sympathize and offer lectures to some law breakers depending on these variables. The situation variables also come into play when the police make a decision. Such variables include the seriousness of the crime, the type of property involved in the crime, who initiated the investigations, and many more others. The police also become more bureaucratic in the presence of the witnesses, an audience, or the media. Lastly, the systems variables include factors in the society’s systems that come into play when the police exercise discretion. Police will portray leniency when the courts and the correctional facilities become clogged, and they will be strict when the city requires revenue. Communities with enough social service resources will allow the cops to use more of non-arrest options compared to those without such resources. Again, the manner in which the cops perceive the distress call will determine how they will react on arrival at the scene (l1ndsaystarr, 2006).
Advantages of police discretion/
Having understood the concept of police discretion, one would want to know whether such a concept really has some benefits to the society or not. Among the advantages of police discretion is the fact that it allows the officer to humanely treat people, giving them a second chance, and improving on the public perception of the police. If the police were to follow the laws to the latter, they will be perceived to be unfair by the society and hence rejected (Rivera, 2006). The other merit of police discretion is that it promotes realistic goals. In this regard, discretion takes into account the fact that the police are presented with unique situations on the ground that requires personal judgment depending on the situation. Discretion is also necessary for efficiency in the criminal justice system. If the cops were to follow the law to the latter, then the criminal justice system would be overwhelmed with the number of cases presented before them. Discretion can also be said to promote autonomy in the sense that the cops and the community at large are not enslaved by the written rules. They are under particular circumstances allowed to route the way for the law. Finally, the discretion promotes job satisfaction for the cops in that they are allowed to exercise some powers which are provided for within the law.
Disadvantages of police discretion
The disadvantages of police discretion mostly lie in the abuse of the privileges they have in regard to exercising the discretion power. Discretion has been seen as inviting partiality in dealing with the citizens as well as forming an opportunity for corruption. Others have argued that during discretion, the cops don’t have the slightest idea about what could be the consequences of their action (Peak, 2009). Police discretion is a potential tool for abuse that might result into potential needless death and/or injury. A cop’s choice may be influenced by personal factors arriving at an irrational decision.
There are possible variations in how the cops might think of a given crime. An officer’s personal attributes and cultural background may influence how they view certain crimes. Racist officers might abuse the discretion aspect and make arrests on the basis of ethnic background. The location of the crime also influences the police decision with crimes committed in what has been classified as hot spots likely to result in arrests. Arrests are most likely to happen in a more open society or a racially mixed society since there is a high chance of crime based on the racial, economic differences, and social disorder (Petheram, 2009).
Areas most favored by police discretion
Police discretion has been observed to be common in domestic violence and traffic offences. In matters to do with domestic violence, the police have been on the forefront asking the social workers for assistance. They have treated domestic violence as a private matter better left for counseling, cooling off periods, and social service referrals. Discretion is used especially when both parties are seen as equally involved in the violence and are either arrested or asked to separate for a few days to dissipate the anger (stánka, 2009).
In traffic, cops can allow a driver who has failed to stop at a red light to walk away as it is normal to make some mistakes. The cops can also use discretion for the drivers caught driving under influence. The cop will call a cab for the driver and have the car towed away. Other crimes that attract discretion include racially motivated crimes, crimes committed by mentally retarded individuals, and petty crimes like a homeless person stealing bread (stánka, 2009).
In order to have full control of discretion, cops would be asked to follow the laws to the latter in every situation that they encounter. However, this is not to be a reality anywhere in this world. There needs to be discretion for the situation to be fair and compatible with the community (Rivera, 2006). Nevertheless, problems associated with discretion require some control mechanism including policies and laws that limit the officer’s use of discretion. Supervision of officers may also serve as a control measure in curbing the misuse of the discretion. The development of policies and procedures on the use of deadly force had had a considerable impact in New York City. The police in this City implemented a “defense of life policy” and it was found that the new policy reduced discharges in the firearms by 30%. As other departments followed suit, the number of those killed by the police in a shoot out nationally dropped by 50% in the years 1970-84. The corresponding ratio of blacks to whites killed during this period also dropped by 50% (Walker & Katz, 2002). Legislations such as the “zero-tolerance law” which requires the use of police sanctions have also contributed to a reduction in police discretion. These laws have targeted areas that were once prone to police discretion including domestic violence, firearm crimes, and certain drug crimes (Walker & Katz 2002). Some cases involving domestic disputes that are not violent have required that one of the spouses be removed from the home to allow for tempers to cool down. Zero-tolerance can also be incorporated by the communities allowing for the deviant elements being removed from the society thereby requiring the police intervention.
The police officers do use their personal judgments in discretion and as we have seen, personal judgments can be affected by many factors including mental health and educational level. With the cops having the ability to momentarily decide on the future of an individual, there is need to test and approve their intellect. The cops have a high level of authority and therefore they need skills to enhance and justify their authority. The requirement to join the police force has been changing over the years even though they vary depending on the district and type of government. It has been established that there are changes in the amount of force and discretion used by officers depending on their levels of education. A cop is required to make quick and ethical decisions and with low level of education, this could be a problem (Petheram, 2009).