Introduction
In criminal justice, law enforcement agencies are institutions mandated to ensure that law and order is put into effect in a certain area of jurisdiction. They include police officers, patrol officers and prosecutors. Discretion in law enforcement refers to the capability of implementation agencies such as the police to point out and file incidents that are criminal in nature (Boivin and Cordeau, 2011). In criminal justice, discretion is also seen as the action by officers based on the opinion about the appropriate course in an encountered situation. In the process of enforcing the law, these agencies face different situations in which their judgment, choice, discernment, and liberty is key in decision-making. Thus, discretion should be responsibly used and not abused so as to ensure criminal justice is upheld. This paper will center on the proper use of force discretion and the improper use of the same and its implication.
Main Body
Acceptable use of force discretion by enforcement agencies
An officer’s discretion helps enforcement agencies determine whether to draw their weapon, make arrests, shoot, conduct a search or stop to help someone. All these activities are performed within acceptable standards that officers get to know through training or use of common sense in decision-making. Enforcement agencies (the police and prosecutors) need to take into account the following factors to use their force discretion in an acceptable way:
Legality of force discretion
When enforcing the law, it is imperative for officers to ensure validity in the decisions they make to have their discretion adjudicated in a legal environment. Their operations should not involve illegalities, and even when making decisions that may not necessarily yield pleasing results, it should be in good faith (Zaring, 2016). The officer’s discretion is hugely dependent on the situations to be handled. These cases can be classified into police invoked law implementation, civilian-invoked law enforcement, officer-invoked order maintenance, and civilian-invoked order maintenance. The legality of the discretion is, therefore, dependent on the nature of the situation and the characteristic of the culprit in any of the instances mentioned above (Katz, 2015). Police-instigated law enforcement is a state of affairs whereby the officers initiate the action against the offense. In this case, there are no victims, and is necessitated by the official’s displeasure over what is taking place, and an example in place includes traffic rules contraventions. Officers’ discretional use of power will be a call for them to make decisions that are legally backed, or have clear-cut justifications for their use.
Independence of law enforcement officials
In addition, the discretion of these officers should be independent and free of any influence from either senior public servants or political directives (Elizabeth, 2012). Hence, obligation or moral obedience should not supersede the goodwill of the decision on the amount of force to employ. They ought to make these decisions after a personal scrutiny of the costs and benefits of every situation, and this will go a long way in ensuring that criminal justice is not negated. No consideration of colleagues’ opinion should count in the decisions to be taken by the individual officer.
Proportionality of the force applied to the offender’s resistance
Enforcement officers should make sure that the measures they take are in proportion to the threat they intend to thwart. The administrators need to examine the rigorousness of the resistance of the citizens and use different enforcement levels (Stradling et al., 2007). The situation will vary from just their mere presence, verbal provocation, use of spontaneous physical force, active physical force and sometimes aggressive or aggravated physical force. However, it is worth appreciating that officers will respond with a force proportional to the reaction of the citizens. Moreover, any action by the law enforcement agencies need to be relevant to the crisis that is before them and they should be in a position to prove the necessity discretion force used.
Given the dynamism of the resistance of the citizens, the continuum approach is applied in the use of force discretion by law enforcement agents. The continuum is multi-leveled, and the officer takes the necessary action given the prevailing situation. For instance, an officer may apply the following Use-of-Force-Continuum;
Presence of the officer
In this case, no force is used and with an officer present, an offense is prevented from happening, or an ugly scene is diffused. In this scenario, great professionalism is upheld, and it is deemed to be an ideal way to deal with a situation.
Verbalization
This is a situation whereby enforcement agents use various verbal commands instead of physical force. It happens to depend on the context and varies from soft commands such as, “May I see your identification documents” to short ones whereby in the later, an officer’s voice is raised to have the targeted citizens comply for instance “Stop!”
Empty Hand Control
This is another acceptable use of police discretion and is applied by using reasonable physical force to contain a situation. It may be regarding a soft technique whereby a person is brought under control through holding and joint locking. The hard technique is useful if the culprit is more resistant and kicking and punching are used to subdue the person.
Less-Lethal Methods
It is a discretion force, which encompasses the employment of blunt impact implements, chemicals and Conducted Energy Devices by officers, to bring a situation under their control. They utilize batons to halt aggressive people, use sprays that are chemical in nature and stop culprits using devices that release high voltage electricity. This method has continuously been evolving given the technological advancements in the recent years. The improvements on the devices are geared towards ensuring fewer injury possibilities with the Taser becoming more popular with law enforcement officers. Use of police dogs has also remained one of the most popular less-than-lethal applications of discretion force.
Lethal Force
In some severe cases, the citizens may be supercharged and very aggravated or even armed thus posing an imminent threat to the officer or another person. In such instances, law enforcement agents may decide to apply lethal force to calm the situation. This could also be made use of to subdue a fleeing suspect deemed to be committing a grave crime that could result in bodily harm or death of another individual. However, when lethal force is used resulting in injuries, it is imperative to seek medical treatment for the injured. It should, however, be noted that there is a policy on the use of firearms which outlines the particular instances when using lethal weapons is acceptable.
Law enforcers should strive to uphold a cordial relationship with the community so as to curtail officer - civilian conflicts. In the case of the use of excessive force, it is always required that the officers report the actions that transpired- the officers’ and the suspects’ actions.
The unacceptable use of force discretion
The abuse of police privileges and use of excessive force is one of the improper uses of discretion. This arises when the proportion of force applied is greater than the resistance of the culprit, or there is no justifiable reason for the amount of force employed in a given situation. Another form of deplorable use of discretion is the violation of citizen’s rights by curtailing the due process of the law. This happens in the event of unwarranted searches and apprehensions and can go a long way in inhibiting criminal justice.
It is also unacceptable for enforcement agents to accept the influence of their decision-making by administrators or political players. It is contrary to the professional and ethical requirements of the agents and amounts to the unlawful administration of the discretion (Mastrofski, 2016). Law enforcement agents will make a decision not to take action in some situations. These are in cases such as domestic violence or moral vices such as prostitution. They rather direct professional counselors to address the matter. It is a misuse of their discretion given that the culprits are left alone, and criminal justice process is forgone.
It is also unacceptable to use excessive force when there is the option to use a less intrusive action to control the situation. For instance, if there is the willingness of the culprit to negotiate, excess force should be avoided. Officers should ensure that they exhaust all less force option before applying any lethal force in any circumstances.
In the use of discretion by the enforcement officials, it is improper to make decisions that are discriminatory in nature. This encompasses the decisions that are influenced by either race of the citizen, their religion affiliation, sex, nationality or political views. The force discretion employed is also not supposed to be swayed by officer’s personal stance about the wrongdoer.
Officers are at all times not expected to usurp the judiciary authority when using their discretion in decision-making. The principle of the innocence of suspects until proven guilty ought to be respected by law enforcement agents. The punishing of offenders is a preserve of the judiciary, and it is inappropriate for police or prosecutors to assume this responsibility.
Implications of law enforcement agencies’ force discretion to criminal justice
Exercising the discretionary powers by the law enforcement agents is beneficial to criminal justice in that it sieves only the most significant offenses for investigation. This prevents the criminal justice system from getting engulfed by numerous cases, a situation that could cause public discontent. When discretion is employed ethically, charges in the criminal justice system are restricted to the most important ones and hence police efficiency is enhanced. It also limits the number of cases being handled thus making the available resources adequate.
However, according to Dobel (2015), discretion should not be geared towards achieving efficiency at the expense of citizen’s rights. This can lead to abuse of the course of criminal justice in which ethical law enforcement practices are mandatory. Discretion is present in all levels of criminal justice institutions and thus the need for its ethical administration. Control of crimes is highly influenced by decisions made at low levels or individual capacities as a result of discretion.
Since the impact discretion of law enforcement has in criminal justice, there have been deliberations on whether or not to control the discretion to use force by officers. This is achieved by the formulation of officer guidelines as well as administration of proper training which will enable the development of standards for the smooth exercise of officer discretion as well as ensuring criminal justice does not interfere with.
When establishing these standards, it is important to understand that the nature of police work is very complex. Also, it will be essential to outline the dos and don’ts of the law enforcement officials and emphasize on the adherence to the standards. Officers will also be needed to exhibit accountability and careless actions guarded against. In so doing, officers will be cultured to exercise force discretion only in the acceptable approach. This will be requisite for the effective and efficient administration of criminal justice.
Use of force can also be managed by the management of community policing, community partnering and problem-solving. Community policing encompasses the emphasis on the community as a partner in accomplishing the task of the police in keeping its locality crime free. In community partnering, concerns of the community are prioritized when conducting policing activities. The essence of these community-based approaches is to minimize the instances where officers have to make their individual decisions in a bid to exercise their discretion, hence end up using excessive force. Use of discretion is, therefore, important but officials should exercise it with the utmost professionalism and ethical considerations. This should be determined by the severity of situation the officer is facing, and use of lethal force should be avoided as much as possible. Its use should only be prompted by critical conditions whereby the officer’s live or the life of another person is threatened.
References
Boivin, R., & Cordeau, G. (2011). Measuring the impact of police discretion on official crime statistics: A research note. Police Quarterly, 14(2), 186-203.
Dobel, J. P. (2015). What Athletic Achievement Can Teach About Ethics. Public Integrity, 17(4), 319-330.
Elizabeth A., S. (2012). 6. Lawful Subversion of the Criminal Justice Process? Judicial, Prosecutorial, and Police Discretion in Edmondson, Kindrat, and Brown. In , Sexual Assault in Canada : Law, Legal Practice and Womens Activism,111-150
Katz, W. (2015, April 10). Enhancing accountability and trust with independent investigations of police lethal force. Retrieved July 21, 2016, from http://harvardlawreview.org/2015/04/enhancing-accountability-and-trust-with-independent-investigations-of-police-lethal-force/
Mastrofski, S. D., Jonathan-Zamir, T., Moyal, S., & Willis, J. J. (2015). Predicting procedural justice in police-citizen encounters. Criminal Justice and Behavior, 43(1), 119–139
Stradling, S. G., Tuohy, A. P., & Harper, K. J. (1990). Judgmental asymmetry in the exercise of police discretion. Applied Cognitive Psychology, 4(5), 409–421.
Zaring, D. (2016). Enforcement Discretion at the SEC. Texas Law Review, 94(1155), 1156-1251
