1. Police Discretion Discretion as Decision-making
By a criminal justice official
Official action (formal or informal)
Based on individual’s judgment about the best or proper course of action
Discretion is not limited except by law and administrative policy
Does discretion Increase/Decrease as you move up the police bureaucracy/chain of command?

2. Police Discretion
When police see something unusual, two discrete decisions:
1) Whether to intervene?
2) How to intervene?
Start to finish, in a routine traffic stop: 770 different combinations of actions (Bayley & Bittner, 1989)
Discretion
Another definition – more useful:
The decision not to invoke legal sanctions when circumstances are favorable to them. e.g., legal basis for an arrest is present.
Examples — teens drinking in a park; traffic stops; arrest decisions; use of force

3. Aspects of Police Discretion
Street-level Bureaucrats (Lipsky 1968)
Officers exercise most discretion
Officers as gatekeepers
Officer behavior determines how the law is experienced
Positive Uses of Discretion
Proper exercise of professional judgment
Effective use of scarce resources (efficiency – gatekeeping is needed)
Individualized justice?
Potential for Abuse of Discretionary Power
Discrimination – decisions (not) to invoke law
Denial of due process
Police-community relations problems
Poor management of personnel and planning/policy

4. Points of Discretion
Not limited to arrest; throughout the police repertoire of legitimate action & department rank
Patrol discretion
Pursuit
Making stops, questioning, frisking
Arrest
Order Maintenance/Peacekeeping
Domestic disputes (mediation vs. arrest)
Mentally Ill
Drinking
Juveniles
Investigation
Seeking a search or arrest warrant
Ending an investigation
Organizational Policy Decisions
Defining law enforcement priorities: traffic; crackdown targets; tolerance for other kinds of activity

5. Sources of Discretion: where does it come from?
The Nature of the Criminal Law
Substantive criminal law is vague
Conflict b/t law and public opinion about wrongfulness of behavior (traffic, drinking, etc.)
Appropriateness of legal response to social problems
Work Environment of Police
Patrol is low visibility; Little direct supervision
Results in significant Autonomy
Police are concerned first & foremost with establishing respect
Limited Resources
“Full enforcement” is not realistic or efficient (e.g., length of time committed to an arrest)
Discretion is efficient (officers manage time, resources, energy)

6. J. Goldstein on Discretion
Total Enforcement
Police respond to every crime. Only a theoretical possibility.
Impossible due to constitutional restrictions (privacy protections): Big Brother imagery. This is known as the area of no enforcement
Full Enforcement
The investigation of every disturbing event the police become aware of and suspect is a legal violation
Determining that a law has been broken, an attempt to discover the offender(s)
Presenting all the information to the DA to determine appropriate action (plea, trial, dismiss)
Full enforcement is the expectation of the criminal law (and arguably the public’s view of how police should do their job)
Realistic expectation for police? Why?
Actual Enforcement
Determined by actions not to invoke the law

7. J. Goldstein on Discretion in the CJS

8. Discretion & Police Behavior
Following up on Goldstein’s distinction b/t
Full enforcement & Actual enforcement
Donald Black:
How often do police make an arrest with complainant and suspect present?
Felony situations - 58%
Misdemeanor situations - 44%
Bottom Line:
Discretion NOT to invoke the law is common in policing

9. Discretion & Police Behavior
Brooks (D&A Ch. 5)
Factors related to discretion:
Organizational perspective & policy guidelines (including police role
Community factors (community demand)
Situational elements (legal and extra-legal)
Officer variables (attributes, attitudes, etc.)

10. Discretion & Police Behavior
Factors related to discretion:
Organizational variables
Powerful influence on discretion.
Discretion is most effectively controlled through policy
Bureaucratic nature: Purpose of procedure—to guide and direct behavior.
Bureaucratic principles can backfire, contributing to secrecy. Over-bureaucratic departments: too much punishment alienates officers.
Informal organizational culture may be more important than policy

11. Discretion & Police Behavior
Informal Organizational Factors:
Police Subculture
Moral grounds of decision making drawn from subcultural sources
Emerges from daily practices (routines)
Social control of territory
Masculinity & Control
Uncertainty: exerting control in “risky” encounters
Marked by strong internal solidarity: Loyalty
Code of silence
Master status
Loose Coupling: Ends justify the means
Bad guy focus – policy & law may get in the way – moral authority

12. Community factors Community or Ecological Demand
How is discretion exercised in high crime areas?
Klinger (1997) argues increased tolerance thresholds in high-crime (urban) beats
Neighborhood variables
Minority neighborhoods:
more reports
more arrests
more requests for police intervention
Urban vs. suburban vs rural neighborhoods
Low income neighborhoods
More arrests

13. Discretion & Police Behavior
Factors related to discretion:
Situational variables take 2 broad forms:
Legal Factors
Behavior constitutes a legal violation?
Seriousness of the violation
Availability of evidence
Extra-legal factors
- Factors beyond the legal circumstances of the situation: Suspect, Victim characteristics

14. Discretion & Police Behavior
Factors related to discretion:
Situational variables.
Mobilization of the law. Proactive (by police) encounters more antagonistic. Less likely to be supported by citizens. Police are consequently likely to treat citizens more harshly. Potential for escalation.
Demeanor and attitude. Disrespectful people more likely to be arrested. (Black - B&B p. 184)
Attitude of the complainant. Arrests more likely when the complainant wants an arrest.
Race. Police more likely to arrest or treat minorities harshly. May be due to (1) minorities more likely to resist authority, but (2) such an attitude may stem from a history of mistreatment.
Gender.

15. Police Behavior Factors related to discretion: Situational variables.
Victim-complainant relationship.
If close, police less likely to arrest (cf. rape). And police more likely to take action if complainant wants them to.
Type of offense.
Police more likely to arrest in felony situations. Common- sense arrest should be based on probable cause, not seriousness. Domestic Assaults
Location.
Stronger response in public settings.
Presence of others.
Presence of other officers—their expectations. Two-person units: more likely to treat suspects harshly. Wolfpacking at traffic stops.

16. Police Behavior Factors related to discretion:
Individual Officer variables.
Education, age and experience. Younger officers tend to be more punitive and aggressive. Quality of older officer’s work higher.
Gender. Some evidence suggests that female police officers are less aggressive. Women less likely to use force.
Career orientation and family situation. Walsh (1986) career-oriented officers more aggressive, increase chance of being promoted.
Race – some evidence Black officers more likely to arrest

17. Explanations of Police Behavior and the use of Discretion
UNIVERSALISTIC Perspectives: look at how officers are similar:
Sociological perspective: emphasizes the social context in which officers are hired, trained, and police citizen interactions.
Psychological perspective. Concerned with the “police personality.”
Organizational perspective: departmental factors play an important role in police behavior.
Police culture: police work characterized by its own occupational beliefs and values.
Subculture: police work has values imported from outside society.

18. Discretion & Police Behavior
Predispositional theory (Psychological approach):
Police behavior is determined primarily by characteristics, values, and attitudes of the individual prior to job.
Focus becomes the police personality
DA14 (Breeding Deviant Conformity):
Authoritarian Personality values
Conformity (in values, appearance, conduct)
Rigid – black/white view of the world
Support status quo

19. Discretion & Police Behavior
Predispositional theory (Psychological approach):
Police behavior is determined primarily by characteristics, values, and attitudes of the individual prior to job.
Rokeach, Miller and Snyder (1971): police hold similar political values and share values of authority with professional fulfillment.
Caldero (1997). Extension of R,M&S Central principles:
Police have distinctively different values from others
Values are similar to the groups from which they are recruited
Largely unaffected by occupational socialization; Police socialization has little impact on values
Values are stable over time
Regardless of race-ethnicity, values are similar
Education has little impact on values
Crank and Caldero (1999) Screening processes insured that officers held similar values regardless of background.

20. Discretion & Police Behavior
Socialization Theory:
Individuals (police officers) are socialized as a result of their occupational experiences.
Two kinds of socialization
Formal socialization: results from the selection process, training, and learning about policies and procedures
Informal socialization: new recruits interact with older, established officers
Informal socialization may contradict formal socialization “forget everything you learned in training”
Thin Blue Line, Wall of Silence – reflects high degree of integration within the rank & file police subculture
Values loyalty and solidarity above other values
Rule of law may conflict with Loyalty to Colleagues

21. DA14 Breeding Deviant Conformity
Sociological Paradigm
Emphasizes professionalism
Anthropological Paradigm
Emphasizes subculture
Police WORLDVIEW
Cognitive filter used to process info re: people, events, places, ideology
Emphasis on military, violence, danger
Symbolic Assailants

22. DA14 Breeding Deviant Conformity
Spirit of Police Subculture
Ethos of Bravery
Ethos of Autonomy
Ethos of Secrecy
Themes of Police Culture
Isolation
Solidarity

23. Police Deviance
Behavior that does not conform to the standards of norms or expectations.
Ethical standards: principles of appropriate conduct officers carry internally. An expression of personal values.
Organizational standards: formal and informal; from rules and regulations, and from peer expectations.
Legal standards: The laws officers are sworn to uphold, due process establishes means officers can use.
These can conflict with each other—e.g., formal dept. standards may conflict with peer expectations.
Barker and Carter (1994)
Deviance is a “generic description of police officers activities which are inconsistent with the officer’s legal authority, organizational authority, and standards of ethical conduct.”

24. Varieties of Police Wrongdoing:
Deviance -- behavior inconsistent with norms, values, or ethics
Corruption -- forbidden acts involving misuse of office for gain
Misconduct -- wrongdoing/violations of departmental procedures
Favoritism -- unfair "breaks" to friends or relatives (nepotism)
Most common Types of Wrongdoing:
Gratuities, Bribes, Theft, Internal Corruption, Brutality (LAPD Rampart CRASH unit)

25. Models of Police Deviance
Knapp Commission (NYPD 1972):
Grass Eaters: Occasional , incidental, minor
Meat Eaters: Committed to corrupt enterprises; Actively pursue opportunities
Larry Sherman: “Rotten Apple” vs. “Rotten Barrel”
(1) Rotten apples/pockets
(2) Pervasive unorganized
(3) Pervasive organized
Barker & Carter:
(1) All the wrong reasons (Type I) (2) All the right reasons (Type II)

26. Explanations of Deviance
Questions to consider:
How does someone attracted to uphold the law become corrupted?
Is power inherently corrupting?
Multiplicity of Standards?
Public Tolerance of Police Wrongdoing?
The importance of socialization & the aspects of police subculture that support police wrongdoing
Persistence and prevalence of a wide diversity of wrongful acts suggests that it is a systemic problem

27. Discretion & Police Behavior
Socialization Versus Predisposition
Why does this issue matter?
Community policing issue:
How to hire new kinds of officers.
If socialization, managers will have to change the organization.
If predisposition, hiring practices have to be changed.

28. Discretion & Police Behavior
PARTICULARISTIC Perspectives: concerned with how officers differ from one another
Worden (1989): officers not psychologically homogenous. Five ways in which officers differ from each other.
(1) View of human nature. (Cynicism)
(2) Different role orientations. Crime fighters, problem solvers, crime prevention
(3) Attitudes toward legal and departmental restrictions. (Ends justify the means, lack of punitive criminal justice system; idealistic)
(4)Officer’s clientele. Judges, MADD—can lead to selective enforcement.
(5) Managers versus peer group support

29. Discretion & Police Behavior
Studies of Police Behavior
Police—Street-Corner Politicians (W. K. Muir).
Four modes of adaptation:
Professional style officers. Compassionate and comfortable with authority.
Enforcers: use force when they have the opportunity.
Reciprocators: compassionate but not comfortable with authority.
Avoiders: neither compassionate nor comfortable with authority.

30. Discretion: Domestic Disputes
Prevalence of Domestic Violence
1 in 6 relationships involve abuse annually
25-30% of all couples will experience a violent incident in their lifetime
Women are much more likely to be victimized by people they know. Consistent across class/race.
Data is lacking b/c of failure to report domestic violence to the police (50-70% of the time depending upon community)
Women who report tend to be low income, working, non-white
Middle class women more likely to rely on alternative means of support
Most common reason for not reporting: perceived as a private matter, followed by fear (retaliation)
Concentrated in certain families (geography – hot spots?)
Victim/offender relationship complicates police response to domestic situations

31. Discretion: Domestic Disputes
Police response:
Historically, has been an area of tremendous discretion.
Discretion as Not Invoking Law
Factors influencing decision NOT to invoke the law?
Belief it is a private dispute
Officer judgment victim will not follow through
Legacy of past dept. perspective to avoid arrest
Arrest is work for officers
Presents risks of injury
Creates higher visibility of officer actions
Police more likely to be batterers than the population as a whole

32. Discretion: Domestic Disputes
Response options include:
Arrest – not so common
Mediation
Separation (physical) – police power is limited to enforce
Referral – police power is limited
No action
Factors influencing decision to arrest?
Severity of injury
Victim’s preference
Relationship b/t v/o
Suspect demeanor (hostility)

33. Discretion: Domestic Disputes
1970s Revolution in DV cases: Mandatory Arrest
1st attempts to control officer discretion
Resulted from efforts to limit police discretion in the courts on the grounds that ♀ were not receiving equal protection under the law
14th Amendment
(1984 Thurman v. City of Torrington, CA)
Police response should be guided by citizen behavior, not by the relationship of the parties involved
Evidence that up to 90% of domestic homicides are in HHs that police have already responded to a call for service
Mandatory arrest policies based upon premise that arrest provides specific deterrence

34. Discretion: Domestic Disputes
Does mandatory arrest deter future DV
Minneapolis DV Experiment (Sherman and Berk 1982)
Examined deterrent effect of alternative actions on Domestic Violence
Arrest, mediation, separation
Cases randomly assigned to each treatment
Findings: Arrests produced lower rates of repeat violence
Resulted in widespread changes in policy toward mandatory arrest for dom. Violence
Closer inspection revealed a number of flaws with the execution of the experiment
Results have not been replicable in other cities
Why? Sample of recidivists; Abuse is normative in relationship; Arrest alone is insufficient; disconnect between arrest and criminal sanctions; interaction effect with social capital
Preferred (pro) arrest has been adopted by most departments
Other provisions have been developed: training in handling domestic situations
Officer response to such policies: generally prefer independence, officer gender, perceptions of danger, civil liability (both ways)