Discretion is defined as an official action by a criminal justice official based on that individual’s judgment about the best course of action. With many aspects of policing, and a variety of calls they receive, officers must use discretion in all, if not almost all, interactions with potential criminals or the community. There is a proper way to use discretion and an improper. The proper way, also known as positive use of discretion can be present when there is use of good judgment, efficient use of scarce police resources, individualized justice, and sound public policy. Two examples of this positive use would be when an officer decides to unfound a case because there is lack of evidence or when a juvenile in fact violates the law, but it was such a minor offense that an arrest isn’t necessary. Abuse of discretion can also come in many forms. Including when the decision is influence by discrimination, there is a denial of due process, under enforcement of the law, poor personnel management, and an inconsistent policy present. Two examples of abusing police discretion are when racial profiling is used to arrest or make a case, and when there is a set policy within the department but the officers on the street make decisions that are not consistent with this policy. Seeing as there is a positive way to use discretion and ways to abuse discretion, there are factors limiting patrol officer discretion, and also factors influencing discretionary decisions.
The discretion of a patrol officer is not completely unlimited. There are three factors that come into play that limit patrol officer discretion. These factors include legal factors, administrative factors, and organizational culture factors. Within legal factors there are Supreme Court decisions, state court decisions, and state laws that all could limit an officer’s discretion. When an officer’s arrest results in going to trial or building a case, they must worry that a defense attorney could challenge the evidence at trial and have the judge exclude it because of a possible illegal search or something set in stone or mandated through the supreme court, or through decisions already processed by the state court. Many states also have laws already governing arrest discretions with certain incidents; one including that of domestic violence incidents causing an officer to question whether or not they could possibly be violating mandatory arrest.
The next factors that can influence discretion are administrative factors. These include department policy and supervisor. With department policies an officer has to be concerned about complying with the policy in certain situations. An example would be with high speed pursuits. An officer may not be able to pursue this individual unless there is a victim or a posed threat to society. Typically a sergeant signs off on all arrests; therefore incorporating supervision into play. If the sergeant believes there is not enough evidence or there are areas that are built off of racial bias, the officer must than worry about whether or not the arrest will be signed off.
The third limitation for patrol discretion is organizational culture factors. This includes peer officer culture. This can be further described by when a department has a peer officer culture that does not tolerate pushing around anyone for any reason in any circumstance. So if an officer was to participate in such activities he or she could have to potentially worry about another officer reporting them for it. This could also result in suspension, leave, expulsion, or termination depending on how serious the matter is.
Aside from limitations, there are also many factors that can influence patrol officer discretion. These factors include situational factors, organizational factors, and social and political factors. Within situational factors come many different forms. The first is seriousness of the crime. The more serious the crime, the more likely an officer is to make an arrest. Next is the strength of evidence. The police are more likely to make an arrest in situations where the evidence of the crime is strong. Preference of the victim is where in domestic disturbance or domestic violence calls the officers ask the victim if they want them to take the suspect in and the victim says no. Arrest will more than likely occur in these types of situations at the preference of the victim and when they say yes. Arrests are more likely to occur when the victim and offender are strangers and less likely when they are married or together. This than allows for discretion when there is a relationship involved between the victim and offender. The demeanor of the suspect is also a very important factor. Arrests and the use of force are more than likely to occur when a suspect is disrespectful towards the officer.
Other situational factors also play an important role. Including characteristics of the victim. Some officers base their decisions on these characteristics. Race, ethnicity, and gender of the citizen also has evidence support that there are arrest made based on this. An example of this would be property crimes or vehicle stops. This suggests that in some situations, there is a prejudgment of what these individuals look like, and when seen they are more than likely to be stopped even if they didn’t commit any type of crime. The immediate work environment also influences police discretion. Officers working in high crime neighborhoods are more likely to fire their weapon and exercise their use force. The last of the situational factors are characteristics of the individual officer. Many people believe that different kinds of officers will act differently on the street. Meaning they will encounter situations differently, therefore exercising their discretion differently.
Next up for influences are organizational factors. These include official department policy, which also happen to have a powerful influence over police discretion. The policies set out by departments must be followed, and even if the officer has a hunch or strong belief that they can pursue something, if in a policy it states otherwise than they cannot follow through with it. Some departments may also have their own informal organizational culture that influences officer discretion. These organizational styles can include watchman, legalistic, and service.
Social and political factors also play a role in influencing police discretion. This is through local political culture. Throughout each state there are areas or neighborhoods that have a high priority for certain crimes. An example could be traffic enforcement. When driving through this neighborhood you could know or have been warned to do the speed limit because there are always officers waiting to catch someone not obeying the signs. Local political culture influences police departments informally, through communication of elected officials, and not through direct written policies.
Discretion is a very important aspect in policing. And as stated throughout, there are many factors that could influence an officer’s ability to exercise their discretion. They could be positive influences, allowing an officer to be more successful and effective. Or negative influences that cause the officer to not be able to fulfill his duties or have his arrests/cases played out. Discretion should be used in all cases, but because of these factors, sometimes an officer isn’t as successful as they would like to be.
