1. © 2011 The McGraw-Hill Companies, Inc. All rights reserved. Police in America Chapter Eleven: Police Discretion

2. 2 Discretion in Police Work Discretion is involved in several critical decisions made by the police. Consider the following: –Domestic Violence Arrests –Mental Health Commitments –Traffic Tickets –Juvenile Court Referrals –Deadly Force

3. 3 A Definition of Discretion Definition of discretion –Official action by a criminal justice official, based on that official’s judgment about the best course of action –Discretion: The freedom to act on one’s own judgment; refers to the latitude involved police officers’ decision making.

4. 4 Aspects of Police Discretion Street Level Bureaucrats Street Level Bureaucrats –Description for patrol officers because they make decisions that produce actual police policy as it affect citizens –Decision to arrest makes them the gatekeepers of the criminal justice system –Police discretion determines public policy

5. 5 Potential Abuse Of Discretion  Discrimination  Denial of Due Process  Systematic Underenforcement of the Law  Poor Personnel Management  Inconsistent Policy

6. 6 Proper Exercise of Discretion The Use of Good Judgment The Use of Good Judgment Efficient Use of Scare Police Resources Efficient Use of Scare Police Resources Individualized Justice Individualized Justice Sound Public Policy Sound Public Policy

7. 7 Decision Points and Decision Makers  Patrol Officer Decisions  Detectives’ Decisions  Police Managers’ Decisions

8. 8 Underlying Sources of Police Discretion 1. The nature of the criminal law - Demands officers exercise discretion and decide whether the crime fits the definition of the law 2. Conflicting public expectations - Some people believe certain behaviors should be legal, despite what the law says 3. Social and medical issues - Homelessness, chronic alcohol abuse, mental health problems 4. The work environment of policing - Working alone vs. in pairs, lack of direct supervision, police-citizen encounters in private places 5. Limited police resources

9. 9 Factors Limiting Patrol Officer Discretion  Legal Factors –Supreme Court Decisions –State Court Decisions –State Law  Administrative Factors –Department Policy –Supervisions  Organizational Culture Factors - Peer officer culture  Situational factors -Seriousness of crime -Strength of evidence -Preference of the victim -Relationship between victim and suspect -Demeanor of suspect -Characteristics of victim -Race, Gender, Ethnicity of citizen -Characteristics of neighborhood -Characteristics of Individual officer

10. 10 Other Factors Influencing Discretionary Decisions Organizational Factors Organizational Factors –Official Department policy –Informal organizational culture Social and Political Factors Social and Political Factors –Local Political Culture

11. 11 The Control of Discretion  The Need for Control  Must control police discretion in order to prevent abuse of police authority  Myth of Full Enforcement  Exists to maintain public image of authority  Prevent the raising of questions about equal protection of the law  Allows supervisors to avoid closely reviewing officer behavior and developing performance expectations  Abolish Discretion?  Joseph Goldstein argues discretion is illegal  Police do not have legal authority to nullify criminal law by not arresting a criminal offender  Enhancing Professional Judgment  Through education and training  Informal Bureaucratic Controls  An arrest raises an officer’s visibility since it is reviewed by a number of higher ranking officers  Written Policies  Administrative rulemaking

12. 12 Administrative Rulemaking Administrative Rulemaking: Seeks to guide the exercise of police discretion through written departmental rules and the requirement that officers complete written reports on how they handled situations. Administrative Rulemaking: Seeks to guide the exercise of police discretion through written departmental rules and the requirement that officers complete written reports on how they handled situations. Examples: Deadly force, domestic violence, high speed pursuits. Examples: Deadly force, domestic violence, high speed pursuits.

13. 13 Principles of Administrative Rulemaking Confining Discretion Confining Discretion –“fixing boundaries” Structuring Discretion Structuring Discretion –A rational system for developing policies Checking Discretion Checking Discretion –Decisions are reviewed by another person  Contributions of Written Rules: - Provide directions for officers on how to handle critical incidents - Promote consistent performance - Provide basis for effective supervision

14. 14 Impact of Administrative Rulemaking Has produced significant improvements in policing Has produced significant improvements in policing –Fyfe found that a restrictive policy on deadly force adopted by the NYC police dept. in 1972 reduced weekly average no. of firearm discharges by 29.1% –Alpert’s study of high-speed pursuit policies found that where restrictive policies were adopted, there was a reduction in the no. of pursuits, accidents, and both officer and citizen injuries. –In the LA Sheriff’s Dept. the no. of citizens bitten by K9 unit dogs declined by 90% after the dept. put in place new controls over how dogs could be deployed.

15. 15 Insuring Compliance with Rules CALEA stands for Commission of Accreditation for Law Enforcement Agencies. Its book of rules is Accreditation Standards for Law Enforcement Agencies. CALEA stands for Commission of Accreditation for Law Enforcement Agencies. Its book of rules is Accreditation Standards for Law Enforcement Agencies. The primary simple strategy for ensuring compliance is to require police officers to file written reports after each incident and to have those reports automatically reviewed by supervisors. The primary simple strategy for ensuring compliance is to require police officers to file written reports after each incident and to have those reports automatically reviewed by supervisors.

16. 16 Codifying Rules: The Standard Operation Procedure (SOP) Manual SOP Manual SOP Manual –Written rules and policies for a police dept. –Central tool of modern police management –Many departments place their SOP manuals online to increase transparency and promote openness

17. 17 Systematic Rulemaking Davis and Goldstein argue that a systematic approach allows the police to anticipate problems before they become crises Davis and Goldstein argue that a systematic approach allows the police to anticipate problems before they become crises –Represents a professional approach to planning –Attempts to encourage systematic rulemaking have been made through CALEA accreditation Standards for Law Enforcement Agencies

18. 18 Citizen Oversight and Policymaking Policy Reviews Policy Reviews –Individual citizen complaints are analyzed to determine whether the underlying cause was a lack of policy (or a bad policy) on the part of the police department –Recommendations for new policy are made as a result

19. 19 The Limits of Administrative Rulemaking 1. It is impossible to write a rule that covers every situation 1. It is impossible to write a rule that covers every situation 2. Formal rules may encourage evasion or lying 2. Formal rules may encourage evasion or lying 3. Written rules may only make the situation worse and create uncertainty 3. Written rules may only make the situation worse and create uncertainty 4. Elaborate rules may create a negative atmosphere in the department 4. Elaborate rules may create a negative atmosphere in the department