Term Paper: Police Discretion Abstact Each Day

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Police Discretion

Abstact

Each day, officers of the law are faced with new and unique situations. They must make a myriad of decisions, often on their own at their own discretion. Klockars (1980) notes, "Policing constantly places its practitioners in situations in which good ends can be achieved by dirty means" (p. 33) for this reason, there has been significant discussion and research centering on use of discretion in law enforcement. To further explore this topic, the benefits and problems associated with police use of discretion is discussed in this paper. The policing strategies that have the most and least potential for controlling officer discretion and providing accountability is presented, as well as why they are rated as such. How police discretion may be impacted by the issues currently facing law enforcement is overviewed. Lastly, the positions of the authors in the readings, including which agree and disagree with one another, is detailed.

Police Discretion

Each day, officers of the law are faced with new and unique situations. They must make a myriad of decisions, often on their own at their own discretion. Klockars (1980) notes, "Policing constantly places its practitioners in situations in which good ends can be achieved by dirty means" (p. 33) for this reason, there has been significant discussion and research centering on use of discretion in law enforcement. To further explore this topic, the benefits and problems associated with police use of discretion is discussed in this paper. The policing strategies that have the most and least potential for controlling officer discretion and providing accountability is presented, as well as why they are rated as such. How police discretion may be impacted by the issues currently facing law enforcement is overviewed. Lastly, the positions of the authors in the readings, including which agree and disagree with one another, is detailed.

Benefits and Problems Associated with Police Use of Discretion:

Klockars (1980) questions when the morally good end warrants the unethical, or even illegal, means, which is often made possible by police discretion. Klockars uses a Dirty Harry analogy to explain the sometimes ethically challenging situations a police officer faces. In the movie, a kidnapped young girl is running out of time and Dirty Harry uses torture, in the form of stepping on the killer's wounded leg, to get a confession out of him as to where the girl is located. As Klockars notes, although everyone would agree saving an innocent person's life is a good thing, most would also agree Dirty Harry's discretionary use of torture is morally suspect. This example demonstrates both benefits and disadvantages of police discretion. The primary benefit being the saving of a girl's life. The disadvantage can be found in the potential that the man Harry was torturing wasn't the killer. However, as Klockstars continues, if the party who "dirty means" is used upon is guilty, then the means are an effective way to a good end, and that these questionable methods are not only used with discretion by police officers, but also as a recognized part of the job, such as during interrogation where misleading information may be given to the suspect to elicit a confession or other usable information.

Skogan and Frydl (2004) note that the varied duties police officer have are often framed in very vague terms. The benefit of police discretion is that officers are able to use discretion in order to interpret these vague mandates and select priorities to perform their duties effectively and efficiently. In addition, discretion is useful in sorting out the potential conflicts that may exist between the officer's competing responsibilities. The complexity that results from the sometimes competing needs to provide effective law enforcement while protecting civil liberties is only able to be handled through the use of police discretion. As such, police discretion is needed, especially with the further understanding that each situation an office encounters is going to be unique, and therefore policies and procedures simply cannot be created for every situation, only general guidelines.

Despite these benefits, one problem associated with police use of discretion is the concerns regarding racial discrimination. As Bayley and Nixon (2010) note, "Concerns raised about the substantial amount of discretion possessed by front line police was one of the first issues taken up by police researchers more than 40 years ago" (p. 5). Bayle and Nixon cite studies by Fridell et al., Skolnick and Fyfe, and Walker, which surmise that there are several policing aspects that have been implicated in racial discrimination, due to police discretion. These include shootings, use of force, arrests, street stops, offense charging, search and seizure, and equality of coverage. This, they conclude, not only is a continuing issue police executives must manage, but also racial discrimination facilitated by police discretion has the potential to destroy police agencies' reputations and the careers of individual officers.

Policing Strategies that Have the Most and Least Potential for Controlling Officer Discretion and Providing Accountability:

Increased accountability has been a concern for decades, in law enforcement. As Bayley and Nixon (2010) note, this accountability is deemed necessary in both effectiveness in controlling crime as well as an officer's personal behavior. For this reason, many police departments have implemented external oversight tools as a strategy for controlling officer discretion and providing accountability. Bayley and Nixon briefly list the development of "complaints commissions, citizen review panels and ombudsmen" (p. 5). These outside tools are effective in that they offer third-party mechanisms to ensure concerns regarding misuse of police discretion are given fair treatment in their review, giving individual citizens equal footing in the investigation process to ensure officers are held accountable for their actions. These third-parties also serve as a deterrent to officers who may consider misusing their discretion in the line of duty. These strategies are critical as the general public "seems more skeptical, especially with respect to the behavior of individual officers. (…) There are two aspects to what is being asked for: (1) holding the police to account for performing the services for which they were created -- crime prevention and criminal investigation and (2) disciplining officers who behave improperly in the course of their duties" (p. 5).

Compstat, as noted by Walsh (2001) has been an effective management process strategy that not only has resulted in double-digit decreases in reported crime in cities like New Orleans, New York City and Minneapolis, but has also facilitated accountability. This process is facilitated through the use of computerized statistics and increased flow of information. In regards to accountability, Compstat allows the higher levels of law enforcement management to ensure crime and quality of life strategies are being effectively implemented.

Weisburd and Neyroud (2011) theorize that a strategy that should be implemented in policing is the development of a large governmental agency, much like the governmental entities like the National Institutes of Health or the Institute of Education Sciences. "Such an agency could (…) provide much needed guidance as to standards for police agencies, license and accredit police practice, require continuous professional development, and perhaps most importantly hold agencies that continue to use ineffective or harmful practices accountable" (p. 13). This could also serve as a deterrent to misuse of police discretion, due to this increased oversight.

A policing strategy that is ineffective in controlling police discretion, according to Klockstars (1980), is the operative assumption of guilt, during street stops, searches and interrogations. Klockstars surmises, "in order for a policeman to do his job, he must, unless he clearly knows otherwise, assume that the person he sees is guilty and the behavior he is witnessing is evidence of some concealed or hidden offense" (p. 39). This assumption of guilt may lead to officers misusing their discretion to elicit some imagined offense. This is further compounded by the Worst of all Possible Guilt" strategy that assumes the person is not only guilty, but dangerously guilty. Although this assumptive strategy helps protect officers when they do rarely come into contact with a dangerous criminal, it biases the officer strongly against those who are innocent as well, which can lead to misuse of discretionary actions.

Proactive policing is another strategy that is often used in modern policing. This, according to Skogan and Frydl (2004), involves the development of 'special operation units' that are engaged in 'directed patrol' tactics. 'Location oriented patrols' are often used by these units in areas of high rates of crime. 'Person oriented patrols' are also used to focus on an individual who it is believed is likely to commit a crime. This strategy has not only failed to control police use of discretion, but has given rise to increased concerns regarding the misuse of this discretion. In an effort to be pro-active in controlling crime before it happens, misuse of discretion can occur.

How Police Discretion May Impact Issues Currently Facing Law Enforcement:

The concern regarding racial profiling specifically, and racial discrimination generally, is a significant issues currently facing law enforcement and one that is impacted by police discretion. As noted earlier, Bayley and… [END OF PREVIEW]

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