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Police in AmericaPolice in America

Chapter Eleven:Chapter Eleven:

Police DiscretionPolice Discretion

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Discretion in Police WorkDiscretion in Police Work

Discretion is involved in several critical Discretion is involved in several critical decisions made by the police.decisions made by the police.

Consider the following: Consider the following: – Domestic Violence ArrestsDomestic Violence Arrests– Mental Health CommitmentsMental Health Commitments– Traffic TicketsTraffic Tickets– Juvenile Court ReferralsJuvenile Court Referrals– Deadly ForceDeadly Force

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A Definition of DiscretionA Definition of DiscretionDefinition of discretionDefinition of discretion

– Official action by a Official action by a criminal justice official, criminal justice official, based on that official’s based on that official’s judgment about the best judgment about the best course of actioncourse of action

– Discretion: The freedom Discretion: The freedom to act on one’s own to act on one’s own judgment; refers to the judgment; refers to the latitude involved police latitude involved police officers’ decision making.officers’ decision making.

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Aspects of Police DiscretionAspects of Police Discretion

Street Level BureaucratsStreet Level Bureaucrats– Description for patrol officers because they Description for patrol officers because they

make decisions that produce actual police make decisions that produce actual police policy as it affect citizenspolicy as it affect citizens

– Decision to arrest makes them the Decision to arrest makes them the gatekeepers of the criminal justice systemgatekeepers of the criminal justice system

– Police discretion determines public policyPolice discretion determines public policy

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Potential Abuse Of DiscretionPotential Abuse Of Discretion

DiscriminationDiscrimination Denial of Due ProcessDenial of Due Process Systematic Underenforcement of the LawSystematic Underenforcement of the Law Poor Personnel Management Poor Personnel Management Inconsistent PolicyInconsistent Policy

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Proper Exercise of DiscretionProper Exercise of Discretion

The Use of Good JudgmentThe Use of Good Judgment Efficient Use of Scare Police ResourcesEfficient Use of Scare Police Resources Individualized JusticeIndividualized Justice Sound Public PolicySound Public Policy

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Decision Points and Decision Decision Points and Decision MakersMakers

Patrol Officer Patrol Officer DecisionsDecisions

Detectives’ Detectives’ DecisionsDecisions

Police Managers’ Police Managers’ DecisionsDecisions

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Underlying Sources of Police Underlying Sources of Police DiscretionDiscretion

1.1. The nature of the criminal lawThe nature of the criminal law- Demands officers exercise discretion and decide whether the crime fits the definition of - Demands officers exercise discretion and decide whether the crime fits the definition of

the lawthe law

2.2. Conflicting public expectationsConflicting public expectations- Some people believe certain behaviors should be legal, despite what the law says- Some people believe certain behaviors should be legal, despite what the law says

3.3. Social and medical issuesSocial and medical issues-- Homelessness, chronic alcohol abuse, mental health problems Homelessness, chronic alcohol abuse, mental health problems

4.4. The work environment of policingThe work environment of policing- - Working alone vs. in pairs, lack of direct supervision, police-citizen encounters in private Working alone vs. in pairs, lack of direct supervision, police-citizen encounters in private

placesplaces

5.5. Limited police resourcesLimited police resources

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Factors Limiting Patrol Officer Factors Limiting Patrol Officer DiscretionDiscretion

Legal FactorsLegal Factors– Supreme Court DecisionsSupreme Court Decisions– State Court DecisionsState Court Decisions– State LawState Law

Administrative FactorsAdministrative Factors– Department PolicyDepartment Policy– SupervisionsSupervisions

Organizational Culture Organizational Culture FactorsFactors- Peer officer culture- Peer officer culture

Situational factorsSituational factors- Seriousness of crimeSeriousness of crime- Strength of evidenceStrength of evidence- Preference of the victimPreference of the victim- Relationship between victim and Relationship between victim and

suspectsuspect- Demeanor of suspectDemeanor of suspect- Characteristics of victimCharacteristics of victim- Race, Gender, Ethnicity of Race, Gender, Ethnicity of

citizencitizen- Characteristics of neighborhoodCharacteristics of neighborhood- Characteristics of Individual Characteristics of Individual

officerofficer

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Other Factors Influencing Other Factors Influencing Discretionary DecisionsDiscretionary Decisions

Organizational FactorsOrganizational Factors– Official Department policyOfficial Department policy– Informal organizational cultureInformal organizational culture

Social and Political FactorsSocial and Political Factors– Local Political CultureLocal Political Culture

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The Control of DiscretionThe Control of Discretion The Need for ControlThe Need for Control

Must control police discretion in order to prevent abuse of police Must control police discretion in order to prevent abuse of police authorityauthority

Myth of Full EnforcementMyth of Full Enforcement Exists to maintain public image of authorityExists to maintain public image of authority Prevent the raising of questions about equal protection of the lawPrevent the raising of questions about equal protection of the law Allows supervisors to avoid closely reviewing officer behavior and developing Allows supervisors to avoid closely reviewing officer behavior and developing

performance expectationsperformance expectations

Abolish Discretion?Abolish Discretion? Joseph Goldstein argues discretion is illegalJoseph Goldstein argues discretion is illegal Police do not have legal authority to nullify criminal law by not arresting a criminal Police do not have legal authority to nullify criminal law by not arresting a criminal

offenderoffender

Enhancing Professional JudgmentEnhancing Professional Judgment Through education and trainingThrough education and training

Informal Bureaucratic ControlsInformal Bureaucratic Controls An arrest raises an officer’s visibility since it is reviewed by a number of higher ranking An arrest raises an officer’s visibility since it is reviewed by a number of higher ranking

officersofficers

Written PoliciesWritten Policies Administrative rulemakingAdministrative rulemaking

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Administrative RulemakingAdministrative Rulemaking

Administrative Rulemaking: Seeks to Administrative Rulemaking: Seeks to guide the exercise of police discretion guide the exercise of police discretion through written departmental rules and the through written departmental rules and the requirement that officers complete written requirement that officers complete written reports on how they handled situations.reports on how they handled situations.

Examples: Deadly force, domestic Examples: Deadly force, domestic violence, high speed pursuits.violence, high speed pursuits.

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Principles of Administrative Principles of Administrative RulemakingRulemaking

Confining DiscretionConfining Discretion– ““fixing boundaries”fixing boundaries”

Structuring DiscretionStructuring Discretion– A rational system A rational system

for developing for developing policiespolicies

Checking DiscretionChecking Discretion– Decisions are Decisions are

reviewed by reviewed by another personanother person

Contributions of Written Rules:

- Provide directions for officers on how to handle critical incidents

- Promote consistent performance

- Provide basis for effective supervision

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Impact of Administrative Impact of Administrative RulemakingRulemaking

Has produced significant improvements in Has produced significant improvements in policingpolicing

– Fyfe found that a restrictive policy on deadly force adopted by the NYC Fyfe found that a restrictive policy on deadly force adopted by the NYC police dept. in 1972 reduced weekly average no. of firearm discharges police dept. in 1972 reduced weekly average no. of firearm discharges by 29.1%by 29.1%

– Alpert’s study of high-speed pursuit policies found that where restrictive Alpert’s study of high-speed pursuit policies found that where restrictive policies were adopted, there was a reduction in the no. of pursuits, policies were adopted, there was a reduction in the no. of pursuits, accidents, and both officer and citizen injuries.accidents, and both officer and citizen injuries.

– In the LA Sheriff’s Dept. the no. of citizens bitten by K9 unit dogs In the LA Sheriff’s Dept. the no. of citizens bitten by K9 unit dogs declined by 90% after the dept. put in place new controls over how dogs declined by 90% after the dept. put in place new controls over how dogs could be deployed.could be deployed.

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Insuring Compliance with RulesInsuring Compliance with Rules

CALEA stands for Commission of CALEA stands for Commission of Accreditation for Law Enforcement Accreditation for Law Enforcement Agencies. Its book of rules is Agencies. Its book of rules is Accreditation Accreditation Standards for Law Enforcement AgenciesStandards for Law Enforcement Agencies. .

The primary simple strategy for ensuring The primary simple strategy for ensuring compliance is to require police officers to compliance is to require police officers to file written reports after each incident and file written reports after each incident and to have those reports automatically to have those reports automatically reviewed by supervisors.reviewed by supervisors.

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Codifying Rules: The Standard Codifying Rules: The Standard Operation Procedure (SOP) ManualOperation Procedure (SOP) Manual

SOP ManualSOP Manual– Written rules and policies for a police dept.Written rules and policies for a police dept.

– Central tool of modern police managementCentral tool of modern police management

– Many departments place their SOP manuals Many departments place their SOP manuals online to increase transparency and promote online to increase transparency and promote opennessopenness

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Systematic RulemakingSystematic Rulemaking

Davis and Goldstein argue that a Davis and Goldstein argue that a systematic approach allows the police to systematic approach allows the police to anticipate problems before they become anticipate problems before they become crisescrises– Represents a professional approach to Represents a professional approach to

planningplanning– Attempts to encourage systematic rulemaking Attempts to encourage systematic rulemaking

have been made through CALEA have been made through CALEA accreditation accreditation Standards for Law Enforcement Standards for Law Enforcement AgenciesAgencies

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Citizen Oversight and PolicymakingCitizen Oversight and Policymaking

Policy ReviewsPolicy Reviews– Individual citizen complaints are analyzed to Individual citizen complaints are analyzed to

determine whether the underlying cause was determine whether the underlying cause was a lack of policy (or a bad policy) on the part of a lack of policy (or a bad policy) on the part of the police departmentthe police department

– Recommendations for new policy are made Recommendations for new policy are made as a resultas a result

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The Limits of Administrative The Limits of Administrative RulemakingRulemaking

1. It is impossible to write a rule that 1. It is impossible to write a rule that covers every situationcovers every situation

2. Formal rules may encourage evasion or 2. Formal rules may encourage evasion or lyinglying

3. Written rules may only make the 3. Written rules may only make the situation worse and create uncertaintysituation worse and create uncertainty

4. Elaborate rules may create a negative 4. Elaborate rules may create a negative atmosphere in the departmentatmosphere in the department