ABSTRACT
Police discretion is a freedom granted to officers in order to make judgment calls while on the job. However, some officers, take advantage of, misuse and abuse that freedom. Today we are seeing many instances in the media showing what happens when officers make the wrong choices and those instances have, in some tragic cases, ended in death. There are two sides to the argument. Many Americans, as well as, many in law enforcement, feel that the unpredictability of police work requires that officers have some freedom to make proactive choices as to how to resolve a situation. However, others argue that it allows different officers to make different judgment calls in very similar situations, which may be inconsistent and may even behave criminally with that discretion. That said many feel that greater supervision and monitoring is required to identify, address and eliminate officer behaviors that are not up to standard. Police discretion has its place, but it requires a firmer grip than it has had in the past.
INTRODUCTION
A man is in parking lot with a gun trained on another man who is holding a gun to a small child’s head. What should he do? If he fires he could hit the small child or the man could pull the trigger when he is shot. If he does nothing then the man will kill the child and then himself. This kind of dramatic, high stress choice are not too common to the average American, however, it is a possible and plausible choice the American law enforcement officers must make on any given day all across the country. Police officers must make quick decisions in stressful scenarios all of the time. They must decide when to make traffic stops, issue tickets and or make arrests each and every shift they work, as well as, more serious scenarios like when to chase, when to draw their weapons and when to use them. Due to the varying scenarios and endless possibilities that police officers may face on the streets, they are allotted a great deal of “police discretion.” They are free to make certain judgments based on their individual intuition, experience, ethical mindset and interpretations of the law they are meant to uphold. There is a line that officers cannot cross; when they do their discretion is held up to a number of professional, legal and discretionary standards. There are many Americans who fully support the practice of “police discretion;” the allowance makes it possible for them to a diverse job in a diverse era. However, there are many Americans who have lost faith and are highly suspicious of law enforcement officer choices and actions under the heading of “police discretion.” In the last few years the discretion used by some police officers has been shocking, unethical and legally wrong. There have been a growing list of instances where officers have used their discretion to make choices, like optioning to use excessive force and, even, gun violence against suspects or offenders without reasonable provocation; this has caused a loss of faith in their ability of officer's to make good choices. It is obvious that “police discretion” is a controversial term and practice. Given the details and research reviewed, it becomes clear that police have to be able to do their jobs, which includes the freedom to make spilt second decisions, but that does not mean, in light of recent police violence, that law enforcement does need to consider reforming and reviewing policies and procedures to safeguard better police discretion and eliminate officers who show serious flaws in their use of their discretion.
BACKGROUND
One of the greatest problems with the use of the term “police discretion” has always been that the definition of the term is rather vague and is open to a great deal of interpretations; the decision making power granted to police officers, which allows them to decide how to proceed in given situations regarding the laws broken and the law breakers in question (Bronitt & Stenning, 2011). That being said it is no wonder that the topic remains the subject of heavy and heated debate all across America, among law enforcement and citizens alike. Experts explain that every officer is expected to adhere to a certain framework when contexting their discretion in any given situation; they are expected to look at scenarios with three specific questions.
1. Goals: Obviously the goals represent the outcome or objective that the officers wished to achieve. Officers are expected to use their discretion to decide best to achieve those goals (Bronitt & Stenning, 2011).
2. Alternatives: In many situations officers have multiple alternatives as to how to resolve a situation. They use their discretion to determine whether to make an arrest or use the weapons at their disposal (Bronitt & Stenning, 2011).
3. Information: Officers are expected to use the information at their disposal to access the situation and make determinations about the offender or suspect in question. For example if the suspect already has a record, the types of crimes did they commit and whether or not they have warrants (Bronitt & Stenning, 2011).
Philosophers will tell you that, like many governmental decisions and policies, which includes law enforcement agencies, are often presented under highly utilitarian perspective; the idea being that the best choice is one that will benefit the largest number of people. However policies are utilitarian, but the police force, like the military, is organized in a much more deontological way. They are encouraged and empowered officers with the ideas of duty and the ethical responsibility of that duty (Palmiotto, 2011). The philosophical perspective can and will continue to be debated and argue as they often have throughout the history of law enforcement. While officers have a great deal of freedom in enacting the discretion there are many internal, external legislative and legal control factors in place to contain and oversee how officers use their discretion. Officers must follow a lot procedures and processes before and after legal incidents, there are strong penalties that such officers may face, but they also have external factors, aspects of their lives and experiences, that make-up a large part of decision making (Bronitt & Stenning, 2011).
DISCUSSION
There are two sides to every issue, as mentioned, but regardless of how one currently perceives law enforcement and the use of police discretion, most average, every day Americans, want every neighborhood, town or city to have a competent, capable, honest and reliable police forces that truly believe in the spirit behind the phrase, “to protect and serve.” Unfortunately, America is not living in such an ideal time, There are good cops, bad cops and cops who are indifferent, there always has been; that has not changed. That being said how could police discretion ever be reliable or just? But would it be more beneficial if officers had no discretion and just strict arbitrary laws that would be applied indiscriminately? The two sides have distinct advantages and disadvantages.
Advantages of Police Discretion
Second chances, show compassion, in certain instances. This is seen often when officers interact with minor criminals (Brown, Novak, & Frank, 2009).Sometimes there are other ways to deal with young offenders than arresting them and putting them into the juvenile corrections system. Or giving drivers the benefit of the doubt when making traffic stops (Palmiotto, 2011).
If officers had no discretion, then the jails, prisons and police stations would be over filled to the brim. Imagine if every minor offense required the officers to detain, arrest and house thousands upon thousands of more “criminals” and hundreds of thousands of new legal cases; it also would not be particularly beneficial in an era of overcrowded prisons. That said having that discretion allows the system to function effectively (Palmiotto, 2011).
Not every officer is the same, police discretion allows acknowledgment the distinction between a dangerous suspect and petty ones. Again, officers must look at the individual and the crime committed in order to determine how to proceed (Sekhon, 2011). For example, an officer sees a man stealing the coins of a wishing well or fountain. He detains the man and does not arrest him, or even handcuff him. He made the man return the coins to the fountain and was allowed to leave. He made a judgment call based on his discretion that in this particular situation, which gave the man a chance to have a second chance.
Disadvantages of Police Discretion
Abuse of power; intimidation of civilians. Sometimes cops enjoy the power and control that they have over people. They will antagonize suspects in order to elicit a response from the suspect that they can then respond to (Palmiotto, 2011).
Personal biases about socioeconomic depressed neighborhoods and the people who live there. When one is conditioned to believe that “Main Street” is a place filled with drugs and criminals, then that is how all of the people who may live there are seen as more likely to be involved in crimes (Baradaran, 2013).
Ineffective and vague definition of police discretion, which can make indentifying “problem” officers difficult. There are officers all across the country that could be defined as “good” cops, but there are many who are not. Because officers are on their own, so to speak, throughout their day, and may misuse and abuse their power and because it is not seen then it makes it hard to prove and address when a problem officer occurs (Palmiotto, 2011).
Looking at the issue, it is clear that there are relevant arguments in both sides of this topic. Again, while there are many officers who do their best to make the most ethical, rational and effective decisions, but there is now proof that there are far too many officers who have proven their discretion to be warped, misused or abused. As seen in the number of cases where these behaviors of officers and their use of discretion that makes the problem, realistically, much larger than just individual officers, but institutional realities that could be contributory to influencing officers actions and how they perceive their duties.
The Broken Window Theory: The Broken window theory sets up a philosophy that crime is not just about the more heinous crimes, like rape and murder, but about the origins of that crime. According to the theory crime begins with the petty acts that are often overlooked. The theory hopes to establish that stronger and immediate action must be taken in neighborhoods when the smallest crimes are committed, even as victimless crime of a “broken window.” This mentality is part of what draws police to more troubled areas where they expect there to be crime and criminals and if it is unaddressed it will only get worse (Kelly, 1999).
Racial Profiling: Racial profiling is a way for officers to determine who is the more likely to commit crimes, based on statistics and studies, which identify certain ethnic groups as being more likely to commit crimes than others. This creates racial thinking that officers manifest when they are among the people. (Baradaran, 2013).
These aforementioned aspects of law enforcement approaches and procedures have contributed to the actions of officers who took advantage of their power, abuse their influence and made choices at their discretion that have ended with tragedy. There are few cases that are being used to identify the phenomena being seen all across the country; police using unnecessary force and lethal weapon use. In order to understand the events that led up to these tragic encounters where police discretions gone awry and when it has not.
Mario Woods: In 2015 on a San Francisco sidewalk a bystander caught the events between Woods and the police on video. Mario Woods was walking back and forth, ignoring the orders of the police to stop, drop the small knife in his hand and get onto the ground. However, while he did not cooperate with the police’s orders he did not make a single movement that could have logically been seen as threatening. As attempted to walk several feet away from the officers and was clearly under the influence of drugs or suffering some kind of mental illness. However, all of sudden without real provocation all of the officers began firing on the man. He was hit with more than 20 bullets (Tate, Jenkins, Mellnik, Muyskens, & Kennedy, 2015). This is a situation where one cannot help but to question the use of police discretion.
Laquan McDonald: In Chicago, Laquan McDonald, a teenage boy, had a small knife and was walking on the highway staying along the middle line. On both sides of the road were police cars and officers ordering him to get onto the ground. He ignored those orders and continues to pace the center line. Another patrol car arrives and Officer Jason Van Dyke steps out. He joins the other officers. Suddenly without provocation Van Dyke opened fire emptying his clip into the teen. When McDonald made a motion to move Van Dyke reloaded and continued firing. Van Dyke lied about the event as did several of the other officers. However, it was the Dash Camera video from another police car that revealed the real story (Tate, Jenkins, Mellnik, Muyskens, & Kennedy, 2015). Van Dyke clearly made the wrong choice and misused his discretion. The criminal justice system agreed and Van Dyke is now in prison serving a sentence for the unwarranted firing upon and the murder of Laquan McDonald.
Michael Brown: The case of Michael Brown in Ferguson Missouri has been a controversial one. Brown stole tobacco products from a convenience store and when Officer Darren Wilson attempted to stop him and his friend they ran. The officer chased Brown into an alley and fired upon Brown multiple times as he was on his knees surrendering. Officer Wilson’s discretion was immediately in question (Tate, Jenkins, Mellnik, Muyskens, & Kennedy, 2015).This version of the story became known around the country and even led to protest, riots and some violent attacks upon police. However, some time later it was determined that the Michael Brown story was rather different from what had been presented, in ways that vindicated Officer Wilson’s use of discretion. Regardless he quit the police force and left the state.
These cases were shocking to the American people, especially with the advent of modern media; which allows the event to reach millions, nearly, instantly. Each case has some very important points to make regarding police discretion. Firstly, their choices were incredibly extreme given the limited threat present in McDonald and Woods cases. The Michael Brown case is a bit different. Unlike the previous two victims mentioned, Michael Brown attempted to fight the officer, attempted to take his gin and was responsible for firing the gun into the police vehicle. He then ran and the officer chased after him. Once confronting each other again, Brown was not surrendering, as some claimed, with his hands in the air (Tate, Jenkins, Mellnik, Muyskens, & Kennedy, 2015). He continued to charge and attempted to intimidate the officer. Unlike the officers in the aforementioned instances, where the officers involved seemed to have little regard for life, Officer Wilson attempted to fire in non-lethal areas in hopes it would provoke his surrender. That said Officer Wilson used his discretion and tried to find a means other than taking the kill shot; it was a last resort.
If police are misusing, abusing and taking advantage of their authority it can be incredibly hard to prove. There are many experts who argue that this kind of ethical corruption has always been a part of the police paradigm. Today, modern technology, is preventing such cases, like Woods and McDonald, from being overlooked (Tate, Jenkins, Mellnik, Muyskens, & Kennedy, 2015). While many instances show the abuse of police discretion was captured by civilian witnesses, as in the case of Mario Woods, it was the work of a police vehicle Dash Camera that caught the events leading to Laquan McDonald’s death. The officer’s behavior was shocking and told a very different story from the one that Officer Van Dyke and the officers told, which shows a complete breakdown and misuse of their discretion.
Dash Cameras and other alternatives that allow officer’s behavior and actions to be monitored it could, therefore, have a great control of the deterring of inappropriate uses of their, discretion, Given the kind of abuses being seen; those that are ending in the loss of lives, there is a greater need for more continuous monitoring. Requiring police officers to wear body cameras that will monitor and regard all of the interactions between the police and the public is a feasible consideration. This could be very beneficial for a number of reasons, the most important being that it would help deter or capture officers who misuses their discretion, but it would also eliminate cases of false abuse accusations against officers by those they arrest. This level of scrutiny might help to improve America’s perception of officers and the job that they are doing. Body cameras are a fantastic, tangible effort for change, but that alone is unlikely to be enough. There is a great need for reformation of policies and reeducating of law enforcement (Tate, Jenkins, Mellnik, Muyskens, & Kennedy, 2015). The problems of unethical and criminal abuse as a result of police discretion could be lessened if more succinct and in depth psychological and background studies so that police candidates, who may be a problem in the future, can be eliminated and never interact with society as an officer.
CONCLUSION
America places a great deal of trust in those who patrol the street with the intention of keeping Americans safe. That said if that trust has been misplaced, in many cases, then it is time to make changes. Officer’s like Jason Van Dyke should never been placed in a position of authority with access to dangerous firearms. The only way to accomplish that is to embrace the new technologies, like Body Cameras, that allow greater supervision of officers that would clearly make some tangible difference. It would force officers to put more thought into their use of discretion, would deter “bad” cops from following through with questionable uses of their discretion and, finally, it would allow people to regain their respect for police officers and have effective means of addressing problems and unethical behaviors of officers. Discretion is a powerful and impactful freedom to bestow upon anyone, but Americans must be proactive and confident in whom they are granting that freedom to.
REFERENCES
Baradaran, S. (2013). Race, Prediction, and Discretion. George Washington Law Review. 81(1).
157-223.
Bronitt, S. & Stenning, P. (2011). Understanding discretion in modern policing. Criminal Law
Brown, R.A., Novak, K.J. & Frank, J. (2009). Identifying variation in police officer behavior
between juveniles and adults. Journal of Criminal Justice. 37. 200-208.
Kelly, G.L. (1999).“Broken Windows” and Police Discretion.” National Institute of Justice.1-62.
Palmiotto, M.J. (2011). Community policing: A police-citizen partnership. Routledge. 1-376.
Tate, J., Jenkins, J., Mellnik, T., Muyskens, J. & E. Kennedy. (2015). People shot dead by
police this year. The Washington Post. 1-132.
Sekhon, N.S. (2011). Redistributive Policing. Journal of Criminal Law and Criminology. 101(4).
1171-1228.
