You do not have to wear the uniform to appreciate the inherent difficulty of police work. Each work day is different, and there is no clear and consistent guidebook on how police should make unsupervised, split-second judgements, handle threats to public safety, properly maintain order, or determine the efficient allocation of limited investigative resources. In truth, the unique requirements of their jobs demand that officers have broad authority to exercise their best judgement: the core of police discretion. Kelling (1999) describes two discrete aspects of police work that require that officers be insulated from knee-jerk, public scrutiny: the complexity of the situations facing officers, generally, and the sophistication of the police response to these scenarios, particularly. Of course, police discretion is not absolute; there are discernible standards for determining whether an officer has followed official police procedure. Still, there is no denying the tensions between an officers need for discretion and public desire for greater oversight in the form of more sensible restraints on police discretion. Reconciling these tensions means acknowledging that police discretion and police accountability are not mutually exclusive. Put another away, police discretion should not be eliminated, but rather police departments must do everything in their power to implement best practices for the exercise thereof.
Police discretion, by definition, is more of an art than a science; how it looks in practice is appropriately different from how it looks in theory. Even so, Engel (2007) provides the most comprehensive understanding of its meaning, describing three constituent parts as forming the core of officer discretion: (1) determinations of the appropriate legal sanctions for a given offense; (2) decisions made in connection with how much time to allocate to each job-specific task; and (3) what Engel defines as the “non-sanction, non-service” aspects of policing, such as community policing and order maintenance. In the patrol division, discretion is implicated the performance of search and seizures, as well as in the decision to arrest or to simply let someone off with a warning. In the detective division, it takes the form of surveillance, determinations about the meaning of evidence as it relates to guilt or innocence, together with the decisions about what charges, if any, to bring against a suspect.
Of course, the fact that police discretion has a decidedly broad definition begs the question: what benefits, if any, does this broad authority over the exercise of discretion offer? According to Goldstein (1977), the most obvious benefit of officer discretion is the inarguable fact that the number of potential criminal offenses exceeds the number of available law enforcement personnel, court systems and correctional facilities. Even if zero-tolerance policies were the law of the land, Engel (2007) proffers a convincing argument that it would be infeasible for the criminal justice system to meet the hiring requirements necessary to effect this policy directive, let alone have the resources necessary to fund such an endeavor.
What’s more, there are many criminal justice academics who make convincing arguments for the correlates between police discretion and officer morale. Simply put, considerable restrictions on officer discretion makes an already difficult job even more complex. And so, to the extent that police have to second-guess decisions that are already, admittedly imperfect, the more likely they are to report dissatisfaction with the job and be unable to perform critical job functions.
Another overlooked benefit of officer discretion is that it allows officers to temper strict law enforcement with restorative justice principles, the idea that not every violation of the law requires an arrest. Simply put, with respect to less serious criminal infractions, letting someone off with a warning goes a long way towards improving public attitudes and willingness to cooperate with police. The basic idea here is that the community at-large has a role to play in policing, regardless of their official title.
Naturally, as an adjunct to the benefits of police discretion are the disadvantages of the unchecked exercise thereof. For instance, because use of discretion is inherently subjective, it is unrealistic to expect discrimination, intentional or otherwise, not to play a factor in some decisions (see, generally, Wilson 1968; Muir 1977; and Klinger 1997). In this regard, the lack of uniformity in discretion means that not only is the public unable to reliably predict how any given officer will use his discretionary judgement, but also, from the standpoint of the officer, how any given behavior or situation will inform decisions of response.
Potential abuses of discretion are also found in circumstances where officers have broad authority to set aside concerns for individual rights. According to Walker and Katz (2002), these concerns can be placed into four specific categories: (1) the right to due process (Fifth Amendment); (2) circumstances where police discretion violates equal protection (Fourteenth Amendment); (3) unreasonable searches and seizures (Fourth Amendment); and (4) right not to self-incriminate during police investigation. The most obvious cases are found in situations where officers are allowed to use deadly force to stop suspect that they perceive to be a threat, or “stop and frisk” someone for suspicious behavior, even if suspicions are directly or indirectly influenced by racial bias. Yet another potential for abuse occurs in the discretion police have in making routine traffic stops. For example, some minority communities have claimed that police discretion in making traffic stops disproportionately impacts minority drivers, leading to calls for re-interpretations of what constitutes unreasonable searches and seizures for purposes of the Fourth Amendment, or more consistent guidelines for traffic stops.
Certainly, the potential for abuses of discretion raises the inevitable age-old question: to abolish police discretion or implement controlling strategies for the use thereof? Without police discretion, it would be nearly impossible for the police to respond to the demands of a job that requires them to be insulated from the second-guessing of their best judgements. True: discretion can be influenced by bias (racial or otherwise) and the potential for abuse is ever present. Even so, the benefits of discretion outweigh hypothetical abuses of power or the fact that officers are sometimes called upon to render imperfect judgements. Resolving this tension means acknowledging the overwhelming benefits of discretion while at the same time putting systems in place that effect the creation of reasonable checks and balances on officer discretion. Establishing accountability measures in the form of comprehensive policy guidelines for the exercise of discretion would allow police departments to more aptly distinguish between officers who operate within official policy guidelines (and yet behave in a way that fractures public trust of police), and officers who bend the rules and don’t always follow the letter and spirit of the rules (and yet nonetheless perform their jobs responsibly in a way that fosters a trusting relationship between the police and the communities that they are charged to protect). Kelling (1999) offers one solution that would go a long way towards resolving these tensions. The proposal calls for clear and consistent guidelines informing all the stakeholders (political and community leaders, the police, and citizens, to name a few) what the rules of engagement are, so that a conversation could be started that assures the public that they are not merely innocent bystanders in this all to important policy debate. Additionally, police departments nationwide should devote more resources to officer training so that the public knows that there is a collective adherence to a process. The goal of such an effort would be to ensure that officers are trained to more accurately assess situations and implement better responses in their contacts with the public.
Goldstein, H. (1977). Categorizing and structuring discretion. Chapter 5 (pps. 93-
130) in Policing a Free Society. Cambridge, MA: Ballinger PublishingCompany.
Walker, S. & Katz, C. (2002). The history of American police. Chapter 2 (pps. 22-56) in
The Police in America: An Introduction, Fourth Edition. Boston: McGraw Hill.
Kelling, G. (1999). “Broken Windows” and police discretion. National Institute of Justice
Engel, R. S. (2007). How police supervisory styles influence patrol officer behavior. Research
for Practice, National Institute of Justice. Washington DC: U.S. Department of Justice.