Police discretion is a very emotive topic in contemporary society. The topic has continued to elicit mixed reactions from various stakeholders, including members of the public, owing to the manner in which (and situations within which) it is exercised. According to Davis (1981), discretion is conceptualized as the ability of an individual to make choices. Davis (1981) goes a step further and defines discretion as the process of making a choice from a number of alternatives. Many people are in agreement that police have the freedom to make decisions on their own. The liberty implies that discretion is a very potent tool in managing the society, which police officers have at their disposal. In this concept paper, the author will describe exercise of discretion by a police chief. The author will start by highlighting the situation calling for discretion. The highlight of the situation will be followed by an analysis of the controlling protocol. Finally, the author will look at the ‘discretionary’ alternative. To this end, the author will outline how discretion is exercised by a police chief with regard to operational issues in traffic control and maintenance of law and order in the society. The ability and need to comply with the controlling protocol, as well as the justification for such exercise of discretion, will also be analyzed in the concept paper.
The scenario described above portrays police officers as individuals willing to supersede the law at various instances. The situations should, however, not be misconstrued as impunity on the part of the police officers. On the contrary, it should be viewed as an undertaking that promotes accountability as far as policing in contemporary society is concerned. For a long time now, pundits have refused to look at discretion as a tool that can be used to reduce injustice in policing. In the current concept paper, the author will make efforts to inform the reader that discretion is not necessarily used as a mechanism of creating bias in policing or a general disregard of rule of law on the part of a police chief. The author will highlight how a blend of relevant discretionary powers is effective in policing, as well as its position in respecting the rule of law. A police chief should use discretionary powers sparingly. It should be exercised by respecting the rights of citizens who should be free from the effects of ‘arbitrary’ power (Lafave, 1965).
According to Davis (1981), it is necessary to put in place rules that regulate discretionary acts by police officers. The rules should be laid down to ensure that discretion is practiced in a manner that promotes equal justice by reducing unnecessary disparities in the entire policing process.
Causes of Discretion
In the section above, the author established that discretion is not acting as one pleases. On the contrary, it was established that discretion is the appreciation of the fact that there is need for rules that help in ‘professionalizing’ policing. The author of this concept paper highlights some of the reasons why it is important to exercise discretion, especially in the police force. The author will highlight some of the factors that will give credence and relevance to the various situations in which a police chief would employ discretion.
According to Gaines & Kappeler (2003), there are three circumstances under which the need for discretion arises. First, there is what the two scholars refer to as the offender variable. In such cases, the police officers prioritize reports made to them by adults, failing to pay much attention to those made by minors. In addition, the offender variable includes instances where the police treats offenders with good behavior leniently. The second category is what Gaines & Kappeler (2003) refer to as the situational variable. In this case, the police officer prioritizes the crimes reported to them depending on their seriousness. It is noted that in some instances, the weight or seriousness of the crime is enhanced when members of the public, including the media, pay too much attention to it. Finally, there is the system variable. In this case, the actions taken by police officers depend on situations. An example of a situation that influences the actions of a police officer includes a busy courtroom or a correctional institution that is packed beyond capacity.
In this concept paper, the author argues that the police chief should always remain true to the rule of law in all the circumstances under which they decide to employ discretionary measures. Remaining true to the rule of law is very beneficial to the police service as it makes it more professional.
Possible Situations for Discretion
In many instances, people assume that discretion, as exercised by police officers, occurs only in situations where arrests are made. In this concept paper, the author informs the reader that such a notion is erroneous. According to Walker & Katz (2005), police officers make discretionary decisions when carrying out a wide range of actions, irrespective of their rank in the hierarchy of police service. To expound on this, the author has selected domestic violence and ‘vice’ crime as two possible situations where a police chief can exercise discretion.
Domestic Violence, Vice Crime, and Police Discretion
Domestic Violence and Police Discretion
More often than not, domestic violence has remained one of the areas where the police have ‘folded’ their hands (Bargen, 2005). In such situations, the police officers opt to step aside and allow social workers to deal with the matter. Bargen (2005) identifies one of the controlling protocols for such a situation. The individual suspected of domestic violence is supposed to be arrested by the police and charges preferred against them. The major purpose of such a protocol is to ensure that the rights and freedoms of the victims are upheld by the police and other members of the community. In spite of the need to respect the rights and freedoms of the victim, there are several discretionary alternatives that a police chief can choose from to deal with the situation. According to Bargen (2005), a police chief can provide their officers with several discretionary alternatives. One of the alternatives includes mediating between the parties involved. The aim of such a measure is to try and reconcile the parties involved in the domestic violence, for example a husband and a wife. The second alternative is giving the parties some time to cool off and engage each other soberly at a later date. To this end, the police chief is fully aware of the fact that domestic violence is a very emotive issue. The third alternative for the police chief and their officers is advising the parties involved to seek counseling from a professional. All the three options above go against the required action of arresting the perpetrator of domestic violence.
It is, however, important to note that arrests have been proven to deter subsequent acts of violence (Sherman, 1984, p. 47). According to Sherman (1984, p. 47), arresting the perpetrator deters them from repeating the offense in the future. The deterrence benefit notwithstanding, the author of this concept paper finds it prudent for a police chief to exercise some degree of discretion in special cases. Discretion should be especially exercised for first time offenders. Discretion in such cases will allow for a holistic approach in tackling the root of the problem. The parties concerned may decide to get to the root of the problem by exploring the psychological part of the healing process, which is achieved by employing the services of a counselor or a social worker. The alternative will yield a chain of ‘positivity’s’. On its part, locking up the offender will possibly cripple the operations of that particular family.
There are various definitions of the concept ‘vice crimes’. Many scholars view them as those offenses that contravene the public order or morality in the society. The offenses go against the moral norms and expectations in the society. A case in point is such offenses as prostitution, pornography, as well as dealing with and using narcotics (Gaines & Kappeler, 2003). Such crimes are ambiguous in nature given that they lack actual victims. In such instances, the author of this paper opines that a police chief has the option of utilizing the services of people who are knowledgeable in those areas. The professionals will take into consideration the consequences of arrests or enforcing the law as stipulated. Such persons as social workers and scholars are brought on board at the discretion of the police chief. The aim of such an inclusion is to provide a solution that might help ease the burden on the criminal justice system.
According to most penal codes, majority of these vice crimes should be firmly dealt with by enforcing the law as it is. To this end, the penal code recommends arrests, searches, and seizure of property owned by the suspect or used in committing the offense. However, in cases where the police chief uses their discretion, the suspects engage with the criminal justice system voluntarily. Under this category are those crimes that are arduous as far as enforcing the law is concerned. The crimes are arduous given the huge expenses incurred in undertaking an investigation. Gaines & Kappeler (2003) suggest that one of the reasons why discretion is highly preferred in such a situation is the unavailability of special units to deal with vice crimes in many police jurisdictions. For example, most of the police stations are understaffed, and as such, police officers find it practical to deal first with the more serious crimes, such as robbery with violence and homicide. Moreover, enforcement of vice laws has been observed to spawn illegal police activities like planting evidence on suspects, leading to extortion or blackmail. It is, therefore, beneficial for a police chief to exercise their discretionary powers to help reduce, or even prohibit, the social menace associated with vice crimes.
The author of this concept paper made efforts to address discretion in the context of police and crime in contemporary society. In the paper, a definition of what discretion entails was provided. In addition, several factors that create the need for some degree of discretion among police officers were discussed. The concept paper has outlined the controversy surrounding the application of discretionary powers by the police. The paper found that when properly exercised, discretion enhances police accountability. Further, this paper found it important for a police chief to come up with a combination of discretionary powers that will make their actions appear unbiased in the opinion of the stakeholders. The reason for this is that discretion is, in most cases, beneficial to the society, even when it contravenes the law.
In the opinion of the author, discretion cannot be avoided when it comes to law enforcement. The important thing is to make sure that it is not exercised in any way that is prejudicial to the criminal justice system. Thus, it should not be painted in bad light or done away with. On the contrary, discretionary powers should be limited to avert any form of abuse by police officers. A police chief should ensure that laws are enforced in a manner that reflects the ideals of a society. Exercising discretion enhances the accountability of the police department. Further, discretion plays an integral role in positively transforming the moral values of a society. The author opines that discretion on the part of a police chief goes a long way in updating the police service operating in a contemporary dynamic society. The standards determining what is termed as acceptable or unacceptable behavior in the society are always changing, and the police should be aware of this change. When a police chief exercises discretionary authority and permits the same from their juniors, peace, law, and order is easily maintained within a society. The development is justified given the fact that the needs of a particular community are taken into consideration when operating the policing system.
Bargen, J. (2005). The next step: Developing restorative communities. Criminal Law Journal, 2, 1-5.
Davis, K. (1981). Police discretion. St. Paul, Minnesota: West Publishing Co.
Gaines, L. K., & Kappeler, V. E. (2003). Policing in America. Cincinnati, OH: Anderson Publishing.
Lafave, W. (1965). The decision to take a suspect into custody. Washington, D.C.: The National Academies Press.
Sherman, L. W. (1984). Experiments in police discretion: Scientific boom or dangerous knowledge? Law and Contemporary Problems, 47(4), 67-81.
Walker, S., & Katz, C. M. (2005). The police in America: An introduction. New York, NY: McGraw-Hill Companies.